•■v-sov^ 


^li 


"^MAIM-JU^ 


^l-LIBRARYQ- 


^•LIBRAE; 


^OJITVDJO^ 


)V^ 


^lOS-ANGElfj> 


%UAINIHt^ 


SjOF-CAl 


^ato; 


^Aavaan-i^ 


mi 


-^UIBRARYOc 


^OJIIVJJO^ 


<A\\EIMVER% 


IJDNVSOl^ 


-< 

^AINfl-JW^ 


^OFCA1IFO% 


VERS/A 


%AHVH8ltt^  IttNYSOl^ 


^lOS-ANf/ 


"^MAINI)-]^ 


^MINIVERS"//, 


^lOS'ANGElfr., 


^ILIBRAi 


LWMltf*  %)JnV3-JO-^ 


^fOJITVJ-JO^ 


^ln 


"#«• 


^ofcaiif; 


^Anvaan 


<^fv  /^vt 


^    ^P      l     £» 


1$      * 


%a]/ 


jp»  & 

■%jainh 

ki% 

*$ac 

j^  & 

^  *"^    -^ 

^•ift  o 

^vU=:l 

<-*    >3n  S 

a.    ^^O   1  ^ 

^ 

c  «a 

'•SOV^ 

%a3Aim-3«vN 

\RYQr 


K 


0J0V 


IF0%        ^0f( 
y0M 


ms/A 


^l 


v.- 


M s  =0 

"%a3AIN(13\\V 

<\RY0,r 

io  <= 

OJO^ 

^Kvru  nvi.  joS** 

IF(% 

CALIFO/rV, 

?)s 

e-v/    >• 

Cy     2: 

1      ^ 

-?     U  I 

nn  -\0X 

rV/l  iiiuunii-iWV 

^ 

"-', 


POLITICAL    SCIENCE. 

Vol.  I. 


Political  Science 


THE    STATE 


Theoretically  and  Practically  Considered 


THEODORE    D.   WOOLSEY 

LATELY  PRESIDENT  OF  YALE  COLLEGE 


Volume    I . 


NEW  YORK: 
CHARLES    SCRIBNER'S    SONS, 
1889. 


Copyright  by 
SCRIBNER,   ARMSTRONG    &  CO. 

1877- 


Tbow*s 

Printing  and  Bookbinding  Co., 
205-213  East  12th  St., 

NEW   YORK. 


ft 
* 


V3 


I 


JC 

\A/8bf 

\W 
V.I 


TO 


\  PRESIDENT     PORTER, 

i\  Of  Yale  College, 

QL\)Cqc  llolnmcs  arc  Jnscribcfc, 

IN      MEMORY     OF     LONG      FRIENDSHIP, 


*>  BY  THE  AUTHOR. 


PREFACE   TO   THE   SECOND  EDITION. 


THE  first  edition  of  this  work  being  exhausted,  the  pub- 
lishers have  called  on  the  author  to  prepare  a  second.  Not 
having  anticipated  nor  expected  such  a  call,  nor  supposed 
that  during  his  life-time,  if  at  all,  it  would  be  made,  he  has 
attempted  such  a  revision  as  the  time  that  could  be  used 
for  doing  the  work,  together  with  feeble  health  and  ad- 
vanced age,  permitted. 

Theodore  D.  Woolsey. 

March  31,  1886. 


PREFACE. 


The  present  work  grew  out  of  lectures,  delivered  in  successive 
courses,  while  the  author  was  president  of  Yale  College,  between 
the  years  1846  and  1871.  On  his  resignation  of  his  office  in  the  year 
last  named,  it  was  suggested  to  him  to  prepare  his  notes  for  publica- 
tion. When  he  came  to  the  task,  the  large  mass  of  materials  which 
was  on  hand  was  almost  entirely  laid  aside ;  and  the  book  has  been 
composed  after  new  examination  of  the  subject,  and  with  consultation 
of  a  number  of  the  most  approved  recent  writers. 

With  regard  to  the  plan  of  the  work  the  author  desires  to  say  a  few 
words.  The  division  into  three  parts,  which  somewhat  answers  to 
the  Naturrecht,  Staatslehre,  and  Politik  of  the  Germans,  seemed  to 
be  necessary,  unless  the  results  of  the  first  or  introductory  part  on 
rights  should  either  be  taken  for  granted,  or  discussed  somewhat  at 
length  here  and  there  within  the  second  part,  which  treats  of  the 
theory  of  the  state.  It  seemed  more  advisable  to  begin  the  theory 
of  the  state  on  the  foundation  of  a  conception  of  justice,  than  to 
work  at  this  foundation  while  the  theory  was  in  the  process  of  con- 
struction. 

The  relations  of  the  second  part  of  the  work  to  the  third  need  a 
word  of  explanation,  if  not  of  defence.  A  leading  thought  of  this 
second  part  lies  in  the  distinction  between  that  which  the  state 
must  do,  if  it  would  fulfil  the  essential  office  of  the  state,  and  that 
which  it  may  and  perhaps  ought  to  do,  without  prohibiting  individu- 
als or  associations,  where  the  nature  of  the  case  allows,  from  doing 
the  same  things.  After  endeavoring  to  establish  this  distinction,  it 
seemed  best  to  leave  the  particulars  to  be  considered  in  the  appro- 
priate section  of  the  third  or  practical  part.  Thus,  for  example,  it 
being  established  that  some  immoral  actions  ought  to  be  forbidden  by 
state  law,  it  remained  in  the  third  to  consider  what  these  were.    And 


Vlll  PREFACE. 

while  in  the  second  part  the  author  tried  to  show  that  the  state  might 
set  up  an  established  church,  provided  that  in  so  doing  no  rights  were 
violated,  the  discussion  of  the  expediency  of  establishments  in  mod- 
ern societies  seemed  to  find  in  the  third  part  its  appropriate  place. 
This  plan  of  looking  at  the  theoretical  and  the  practical  sides  of  the 
same  subjects  in  different  places  must  be  confessed  to  be  not  without 
its  evils.  It  can  hardly  be  followed  rigorously  and  without  excep- 
tions. But  a  greater  evil  is  that  it  exposes  a  writer  to  repetitions 
against  which  the  author  was  on  his  guard,  and  did  much  to  prevent 
or  to  remove  them,  yet  not  with  complete  success. 

The  plan  of  the  third  part  included  not  only  a  general  view  of 
forms  of  government,  departments  and  institutions  in  their  growth 
and  at  their  maturity,  but  of  a  number  of  individual  states  also,  which, 
having  figured  largely  in  the  history  of  the  world,  may  serve  as  types 
and  illustrations  of  the  forms  to  which  they  pertain.  Here  the 
enquiry  arose,  Shall  those  states  which  passed  through  a  succession 
of  forms — Rome,  for  instance — be  treated  as  having  a  continuous  life 
through  their  stages,  or  shall  they  be  considered  in  one  of  their  forms, 
under  the  head  of  monarchy,  under  another,  of  aristocracy,  and  so 
on  ?  The  latter  plan  was  pursued,  and  if  it  should  be  condemned  as 
breaking  up  the  existence  of  certain  nations  into  parts,  the  author 
must  acknowledge  its  disadvantages,  which  seemed,  however,  to  be 
overbalanced  by  the  gain  on  the  other  side. 

The  third  part  is  much  larger  than  the  two  others  taken  together. 
This  was  caused  by  the  wish  to  exhibit  the  politics  of  the  leading 
states  in  their  growth  and  changes,  with  so  much,  and  only  so  much 
of  their  history  introduced  as  might  seem  necessary  for  this  end. 
Whether  these  exhibitions  of  the  course  of  politics  in  the  historical 
way  is  a  useful  part  of  practical  politics,  the  reader  must  judge. 

As  far  as  style,  selection  of  materials,  and  proportion  in  using 
them  are  concerned,  the  book  must  speak  for  itself.  The  political 
opinions  which  find  their  appropriate  place  in  the  work,  especially  in 
the  last  part  of  it,  the  author  could  not  disguise,  nor  can  he  hope  that 
they  will  be  acceptable  to  all  his  readers. 

Theodore  D.  Woolsey. 

October  30,  1877. 


CONTENTS    OF   VOL.    I. 


Port  1. 

DOCTRINE  OF  RIGHTS  AS  THE  FOUNDATION  OF  A  JUST  STATE. 


Introduction 1-5 

CHAPTER  I. 
General  Explanation  of  Rights 6-37 

CHAPTER  II. 

Particular  Rights — Life,  Limb,  etc. — Property — Contracts — Association — Family 
Rights — Free  Speech — Reputation — Worship — Is  there  any  Right  of  Redress- 
ing One's  Own  or  Another's  Wrongs  ? — Rights  Need  the  State 38-119 

CHAPTER  III. 
Some  Opinions  on  Justice,  Natural  Law,  and  Rights. , „ . .. .  120-137 


f3ctrt  2. 

THEORY  OF  THE  STATE. 


CHAPTER  I. 
Opinions  on  its  Nature  and  Origin  (with  an  Introductory  Section  on  the  Terms, 
State,  Nature,  etO 139-188 

CHAPTER  II. 
Theories  Touching  the  State  Examined 189-198 


X  CONTENTS   OF   VOL.    I. 

CHAPTER  III. 
Land,  Sovereignty,  and  People 199-207 

CHAPTER  IV. 
Sphere  and  Ends  of  the  State 208-242 

CHAPTER  V. 
Limits  of  State  Power — Humboldt  and  J.  S.  Mill  on  these  Limits — Remarks  on 
their  Opinions — Limits  of  Particular  Rights 243-2S1 

CHAPTER  VI. 
The  Organization  of  States 282-302 

CHAPTER  VII. 
Liberty  and  Equality  in  Conflict,  or  Communism  and  Socialism 303-323 

CHAPTER  VIII. 
The  Punitive  Power  of  the  State 324-381 

CHAPTER  IX. 
Some  Points  of  Political  Ethics  Examined 382-430 


Part  3. 

PRACTICAL  POLITICS. 


CHAPTER  I. 
Earliest  Institutions  (with  an  Introductory  Section) 431-465 

CHAPTER  II. 
Forms  of  Government 466-4S6 

CHAPTER  III. 

Monarchies Ancient  City-Kings— Absolute  Monarchy  in  several  Forms— Imperial 

Despotism  Founded  on  Popular  Sovereignty— Greek  and  Italian  Tyrannies- 
Limited  and  Mixed  Monarchies— Elective— Feudal— Spartan— English  Mon- 
archy—Constitutional Monarchy  and  Irresponsiblity  of  Kings 487"585 


POLITICAL  SCIENCE. 


Ipart  1. 

DOCTRINE   OF    RIGHTS    AS    THE    FOUNDATION 
FOR   A   JUST   STATE. 


INTRODUCTION. 

$1. 

If,  according  to  a  true  theory  of  man,  there  are  any  per- 
pian  and  starting-  sonal  rights,  they  can  be  realized  only  in  and 
point  of  this  treatise.  by  means  of  the  state.  If  there  is  any  such 
thing  as  a  just  state,  one  of  its  offices  consists  in  protecting 
personal  rights.  Rights  and  the  state,  then,  have  intimate 
connections,  so  that  either  we  must  assume  a  certain  theory 
and  system  of  rights  in  treating  of  the  state,  or  we  must  exam- 
ine the  doctrine  of  rights  and  make  it  our  starting-point  for 
the  consideration  of  organized  society.  In  this  treatise  we 
intend  to  include  them  both  ;  but  the  theory  of  rights  will  be 
made  to  serve  as  a  preface  to  the  theory  of  the  state,  rather 
than  to  take  an  independent  place,  such  as  it  might  have  in  a 
work  devoted  to  natural  law. 

Some  things  must  be  assumed  in  an  essay  like  this.  We 
assume  the  personality  and  responsibility  of  man  as  a  free 
moral  being.  We  assume  also  a  moral  order  of  the  world, 
not  founded  on  utilities  that  are  in  such  a  sense  discoverable 
by  man  that  he  could  construct  a  system  of  laws  for  human 
actions  upon  them,  however  the  divine  author  of  the  world 
may  have  arranged  it  on  such  a  plan.  We  discard  the  great- 
est happiness  theory  as  of  no  use,  nay,  as  harmful  in  the  de- 


2  POLITICAL   SCIENCE. 

partment  of  politics ;  and  believe  that  in  human  relations 
there  must  be  a  distinction  drawn  between  benevolence  and 
justice.  At  the  same  time  we  admit  that  happiness  is  an  end 
which  the  individual  and  the  state  may  rightfully  aim  at,  and 
an  important  one,  although  subordinate  to  the  right  and  to 
the  ends  contained  in  the  perfection  of  human  nature.  We 
hold,  also,  most  firmly  to  a  system  of  final  causes,  running 
through  the  moral  and  social  as  well  as,  and  more  clearly  than, 
through  the  physical  system,  which,  in  the  plan  of  man's 
nature,  appear  in  most  wise  and  beneficent  preparations  for  a 
good  and  just  society. 

We  wish,  also,  to  forewarn  our  readers  that  in  starting  from 
the  point  of  individual  rights  we  by  no  means  would  be  under- 
stood as  believing  the  protection  of  rights  to  be  the  only  end 
for  which  the  state  exists  :  far  from  this,  we  hold  that  a  good 
state  has  other  most  important  objects  placed  before  it,  as  we 
hope  to  show  in  the  sequel.  But  a  state  has  no  right  to  exist, 
and  does  not  deserve  to  be  called  an  organism  fit  for  human 
society,  which  is  not  a  just  state.  Now,  a  true  view  of  human 
rights  is  necessary,  in  order  that  a  state  may  be  intentionally 
just.  Possessed  of  this  quality  alone,  it  would  be  an  imper- 
fect state  ;  but  without  this  quality  it  would  not  deserve  the 
name  of  a  state  for  human  beings  at  all. 

The  plan  of  the  present  work  will  require  us  to  consider 
first  the  general  conception  of  rights,  which  will  be  followed 
by  all  necessary  explanations  of  particular  rights  ;  after  which 
will  come  an  exposition  of  the  theory  of  the  state.  This  will 
be  followed  by  practical  politics  or  a  discussion,  historical  and 
critical,  of  the  means  that  have  been  used,  or  that  are  best 
fitted  for  attaining  to  the  ends  implied  in  the  existence  of  the 
state,  so  far  as  they  seem  to  be  worthy  of  notice. 

§2. 

The  subjects  of  which  we  propose  to  treat  in  the  first  part 

Rights  and  natu-  °f tms  work  are  sometimes  comprised  under  the 

r:ill:uv  science  of  natural  law,  or  the  law  of  nature, — 

terms  which  owe  their  origin  to  the  Roman  jurists,  but  arc 


INTRODUCTION.  3 

used  in  modern  times,  with  an  altered  signification.  Grotius 
(de  jure  bell,  et  pac.  i.  I.  §  10)  defines  jus  naturale  in  sub- 
stance as  the  conclusions  of  right  reason  in  regard  to  the 
moral  quality  of  an  action  from  its  conformity  or  want  of  con- 
formity with  the  moral  and  social  nature  of  man.  The  terms, 
then,  will  include  both  morality  and  jus,  if  not  something 
more.  Sir  James  Mackintosh,  at  the  beginning  of  his  dis- 
course on  the  law  of  nature  and  nations,  gives  the  following 
account  of  this  branch  of  study.  "  The  science  which 
teaches  the  rights  and  duties  of  men  and  of  states  has  in 
modern  times  been  called  the  law  of  nature  and  of  nations. 
Under  this  comprehensive  title  are  included  the  rules  of 
morality,  as  they  prescribe  the  conduct  of  private  men  toward 
each  other  in  all  the  various  relations  of  human  life  ;  as  they 
regulate  both  the  obedience  of  citizens  to  the  laws  and  the 
authority  of  the  magistrate  in  framing  laws  and  in  administer- 
ing government  ;  and  as  they  modify  the  intercourse  of  inde- 
pendent commonwealths  in  peace,  and  prescribe  limits  to  their 
hostility  in  war.  This  important  science  comprehends  only 
that  part  of  private  ethics  which  is  capable  of  being  reduced 
to  fixed  rules."  This  definition  seems  to  include  all  private, 
political,  and  international  rights  and  obligations,  but  confines 
the  science  to  a  department  of  ethics  where  fixed  rules  can  be 
applied.  But  since  the  irreducible  part  of  private  ethics  de- 
pends upon  an  idea  or  an  opinion  concerning  our  nature  as 
really  as  that  which  can  be  subjected  to  rules,  it  is  not  easy  to 
see  why  the  term  natural  law  should  be  restricted  to  the  lat- 
ter. And,  again,  while  it  is  in  theory  true  that  the  law  of 
nations  belongs  to  the  same  ethical  science  with  private  and 
public  right  or  jus,  practical  convenience  seems  to  require 
that  it  be  treated  of  by  itself,  since  the  greater  part  of  inter- 
national law  is  of  a  positive  character,  not  deducible  directly 
from  fixed  rules  of  ethics,  but  ascertained  from  convention 
only.  Nations,  being  independent  communities,  it  is  free  for 
them  to  determine  on  what  conditions  they  will  hold  inter- 
course with  one  another. 

All  these  branches  of  study  depend  on  ethical  principles  ; 


4  POLITICAL   SCIENCE. 

but  the  conception  of  rights  leads  us  into  a  field  so  peculiar 
and  distinct  from  the  wider  department  of  morals,  although 
contained  within  it,  and  is  also  so  important  for  the  proper 
consideration  of  man  in  the  state,  that  I  cannot  hesitate  to 
abandon  the  old  term,  natural  lazv,  preferring  to  constitute 
the  doctrine  of  rights  and  that  of  the  state  as  two  branches 
of  political  science. 

§3- 

The  science  of  morals  relates  to  all  those  acts,  internal  and 
Moral  and  jural  external,  of  moral  beings,  over  which  the  will 
spheres.  can  }iave  control,  and  without  which  a  perfectly- 

right  life  is  impossible.  But  among  these  acts,  the  internal 
ones,  such  as  feelings,  motives,  intentions,  cannot,  as  a  class, 
be  accurately  judged  of  by  finite  beings  unless  by  him  who  is 
conscious  of  them  :  they  can,  therefore,  in  themselves,  never 
be  the  subject-matter  of  human  law,  positive  or  prohibitory. 
It  is  only  outward  acts,  taken  in  connection  with  the  inward 
intention  which  they  disclose — including  also  designed  neglect 
to  act — that  human  law  can  notice.  How  far  a  right-think- 
ing society  will  take  notice,  in  its  laws  and  punishments,  of 
wrong  outward  actions,  is  a  subject  which  we  shall  have  to 
consider  hereafter.  At  present  we  refer  to  the  subject  only 
to  show  that  there  must  be  a  limit  to  the  laws  of  society 
within  the  broader  sphere  of  the  laws  of  a  perfect  system  of 
morals.  Society  was  never  meant  to  be  the  principal  means 
by  which  the  perfection  of  the  individual  was  to  be  secured, 
but  only  the  condition  without  which  that  perfection  would  be 
impossible. 

In  order  to  fulfil  his  work  in  the  world  the  individual  must 
have  certain  powers  of  action,  which  neither  public  law  nor 
the  will  of  other  individuals  can  be  permitted  to  control. 
Thus,  if  he  would  work  he  must  have  the  free  use  of  his  mus- 
cles ;  if  he  would  join  another  individual  in  working,  they  two 
must  agree  upon  the  terms  ;  if  a  man  and  a  woman  enter  into 
a  state  of  marriage  it  must  be  with  free  consent,  unless  it  can 
be  shown  that  the  strong  can  compel  the  other. 


INTRODUCTION.  5 

But  it  may  be  asked,  cannot  the  law  of  society  regulate 
these  powers  of  action,  so  that  the  individual  himself  shall  not 
judge  how  he  shall  employ  his  power  of  using  his  muscles  or 
of  making  a  contract  ?  One  answer  is  that  this  is  as  much 
beyond  the  power  of  society  as  it  would  be  to  read  the  heart. 
Half  of  society  would  be  employed  in  seeing  that  the  other 
half  did  not  exercise  its  powers  improperly,  and  the  great 
body  of  supervisors  would  have  no  one  to  supervise  them. 
The  powers  of  free  action  would  be  taken  from  half  of  the 
society  in  order  to  be  given  in  larger  measure  to  the  other 
half. 


CHAPTER  I. 

GENERAL   EXPLANATION   OF   RIGHTS. 

The  powers  of  action  lodged  in  the  individual  by  nations 
Rights  are  powers  must  then  be,  to  a  certain  extent,  powers  of free 
of  free  action.  action.     But   that  the    individual  should  have 

some  unrestricted  powers  of  action  springs  not  merely  from 
the  necessity  of  the  case — from  the  inability  of  the  commu- 
nity to  superintend  the  movements  of  the  individual — but 
also  from  the  reason  of  the  case.  Here  we  appeal  to  the 
convictions  of  men,  who  will  admit  that  a  certain  amount  of 
freedom  in  mature  human  beings  is  essential  to  nobility  of 
character.  Freedom  is  essential  to  virtue,  courage,  strength 
of  character,  sense  of  responsibility,  high  aspiration. 

These  powers  or  ways  of  free  action  are  called  rights,*  or 
subjective  rights,  as  pertaining  to  the  individual, 

Subjective  rights.  . 

so  that  it  is  right  that  he  should  use  them,  or, 
as  it  may  be,  refrain  from  using  them  when  and  as  he  will. 
And  if  it  is  right  for  him  to  use  them,  it  is  wrong  for  others 
to  interfere  in  his  use  of  them;  or  in  other  words,  they  are 
bound  to  abstain  from  interference — are  bound  to  leave  him 

*  The  word  right  is  derived  from  a  root  denoting  in  its  physical 
sense  to  stretch  out,  or  straighten  ;  as  straight  is  allied  to  stretch, 
Anglo-S.  streccan.  So  raihts  in  Goth.,  rectus  in  Latin,  and  ope'yw  in 
Greek,  show  the  same  root  for  the  most  part  in  the  physical  sense,  but 
denote  also  the  reaching  forth  of  desire  after  an  object.  The  moral 
sense  appears  in  rectus,  Latin,  in  recht,  right,  etc.,  in  Germanic  lan- 
guages, and  answers  to  wrong  connected  with  to  wring  or  twist.  So 
in  Hebrew,  the  first  notion  of  the  very  common  roots,  yashar,  tsadaq, 
is  straightness.  What  is  the  explanation  of  the  transition  to  the 
moral  idea  ?  Does  rightness  or  straightness  denote  conformity  to  a 
straight  rule,  or  walking  in  the  straight  way,  without  diverging  or 
wandering  ? 


GENERAL   EXPLANATION   OF   RIGHTS.  7 

free  in  this  respect.     This  binding  force  imposed  by  his  free 
And    correlative  power  or  his  right>  and  indeed  necessarily  in- 
obiigations.  volved  in  it,  we  call  obligation  ;  and  in  this  work 

we  intend  accurately  to  distinguish  the  correlative  to  a  right  or 
rights  by  this  word,  and  to  use  the  word  duty  in  a  wider 
moral  sense.  We  make  a  distinction  (following  the  lead  of 
several  recent  writers,  as  Lieber,  Whewell,  Wildman)  between 
the  jural  and  the  moral  spheres  or  departments.  That  which 
has  to  do  with  rights  and  obligations  we  call  the  jural,  that 
which  is  concerned  with  moral  claims  and  duties  we  call  the 
moral.  The  intimate  relations,  and  the  differences  of  these 
two  branches  of  ethics,  we  intend  to  consider  hereafter. 

§5- 
But  how  does  it  appear  that  there  are  powers  of  free  action 
Proof  that  ri  hts  pertaining  to  individuals,  to  which  the  name  of 


exist. 


rights  is  applied  ?  And  how  do  we  discover 
what  they  are  ?  To  the  first  question  we  reply  first  that  there 
is  a  general  agreement  throughout  mankind  on  the  point  that 
there  are  rights,  however  indistinct  the  conception  of  them, 
and  however  different  in  different  ages  or  races  the  enumera- 
-       ,    .,       tion  of  them  may  have  been.      I.  Take  the  case 

i.  from    family  J 

life-  of  the  child  in  the  family.     A  parent  has  given 

something  to  one  of  the  children,  and  he  calls  it  his  own. 
If  now  an  older  and  stronger  child  takes  it  from  him  by 
force,  he  feels  that  a  wrong  is  done  to  him  and  endeavors  to 
recover  it  by  force.  Or  let  a  younger  child  steal  such  a  gift 
given  by  the  parent ;  here  too  the  older  and  stronger  child 
feels  that  a  wrong  has  been  done  to  him.  Thus  there  is  an 
acknowledgment  and  a  conviction  within  the  family  society 
that  neither  superior  force  gives  a  right  to  a  thing,  nor  supe- 
rior craft  ;  but  that  a  connection  has  been  somehow  formed 
between  a  person  and  (in  the  case  supposed)  a  thing,  which 
— unless  some  higher  authority  interposes — continues  until  the 
will  of  the  individual  himself  breaks  the  connection  by  trans- 
ferring the  thing  to  another.  For  let  the  boy  who  has  been 
wronged  by  fraud  or  force  be  placated,  and  he  will  be  ready, 


8  POLITICAL   SCIENCE. 

perhaps,  to  pass  over  the  object  to  some  other  boy,  or  even 
to  the  wrong-doer.  He  does  not  doubt  that  the  relation 
formed  between  him  and  the  thing  gives  to  him  the  free  dis- 
posal of  it.  But  let  the  parent  have  given  the  thing  to  him 
with  the  injunction  that  he  is  not  to  part  with  it.  In  this  case 
he  feels  that,  while  he  calls  it  his  own,  certain  uses  and  a  cer- 
tain disposal  of  it  are  prevented  by  the  manner  in  which  he 
received  it.  His  will,  his  power  of  free  action  was  thus  lim- 
ited, and  the  property  in  the  thing  was  not  absolute  in  all 
respects.  But  if  it  had  been  given  to  him  in  complete  pos- 
session, he  will  not  hesitate  to  exchange  the  thing  so  given 
for  something  which  another  boy  agrees  to  give  him,  and 
then,  if  this  contract  of  exchange  is  violated,  he  will  feel  that 
the  other  boy  has  injured  him.  Here  we  see  the  "  cruda  exor- 
dia "  of  the  great  system  of  justice  which  binds  the  world  to- 
gether, and  it  is  worth  while  to  notice  here  how  early  and 
easily,  amid  normal  human  relations,  the  conception  arises  of 
a  special  right,  an  ownership  of  some  object  in  the  material 
world,  of  a  right  of  transfer  to  another  of  the  object  owned, 
and  of  an  obligation  created  by  contract.  The  child  does  not 
look  to  the  rights  of  property  beyond  the  family  circle,  he 
does  not  ask  how  the  father  came  to  have  the  right  to  give 
him  the  thing;  but  as  little,  in  general,  do  grown-up  people 
in  the  state  ask  how  the  state  comes  to  have  the  right  of  prop- 
erty over  wild  land,  or  even  how  private  persons  acquire 
their  titles,  unless  for  their  own  security  it  becomes  necessary 
to  decide  this  question. 

2.  The  rights  thus  acknowledged  by  children   at  an  early 
age  are  expressed  in  the  laws  of  most  nations. 

2.  From  state  law. 

We  do  not  affirm  that  either  in  laws,  or  in  de- 
cisions when  laws  are  broken,  there  is  always  a  distinct  con- 
ception of  what  rights  are.  Some  persons,  as  slaves,  have  no 
rights,  but  are  property  themselves  ;  or  there  is  a  small 
amount  of  rights  as  against  the  government  in  a  despot- 
ical  society  ;  or  religion  and  civil  rights  are  so  blended — 
owing  to  the  protection  which  early  society  draws  from  re- 
ligion in  order  to  secure  justice — that  the  distinctness  of  the 


GENERAL   EXPLANATION   OF   RIGHTS.  9 

civil  relations  does  not  stand  forth  in  its  due  clearness.  But 
in  such  cases  the  sense  of  justice  is  better  than  one  might 
think.  The  slave  is  such  by  way  of  punishment,  or  as  a  cap- 
tive in  war,  the  sum  total  of  persons  in  one  nation  being 
conceived  to  be  at  war  with  the  sum  total  of  another ;  or  for 
the  payment  of  a  debt  ;  after  which  partus  sequitur  vcntrem, 
according  to  a  principle  which  would  be  just  enough  if  man 
was  only  an  animal.  And  if  we  look  at  the  law  of  nations, 
from  those  of  Manu  or  of  the  Jews  downward,  we  find  similar 
notions  of  rights  and  obligations  running  through  them  all. 
The  ten  commandments  are,  in  part,  simple  statements  of 
obligation  in  the  prohibitory  form,  implying  the  conceptions 
of  the  rights  of  property,  of  the  family,  of  marriage,  and  of 
life,  and,  by  forbidding  false  oaths  and  false  witness,  securing 
the  obligation  of  contracts. 

3.  It  will,  perhaps,  be  said  that  such  recognitions  of  rights 
3.  Are  recognized  do  not  belong  to  human  nature  as  such,  but 
in  inferior  races.  ^Q  trjkes  and  races  that  are  somewhat  above  the 
lowest  level  at  which  men  have  been  found.  Were  this  true, 
it  would  only  show  that  there  is  a  certain  degradation  in 
which  moral  ideas  have  almost  faded  out  from  a  savage  tribe. 
But  the  readiness  with  which  some  such  tribes  have  received 
the  moral  code  even  of  Christian  ethics,  shows  that  their  sense 
of  justice  only  needed  to  be  quickened,  not  to  be  created. 
But  it  is  not  true.  In  many  places,  where  ships  have  visited 
islands  of  the  sea,  the  people  will  steal  every  small  article  on 
the  vessel,  but  so  the  sailors  will  commit  acts  of  violence,  and 
indulge  their  lusts  with  the  women,  married  or  not.  Have 
they,  too,  had  no  moral  ideas  ?  If  you  look  at  the  laws  of  the 
islanders,  you  will  find  that  the  conceptions  of  rights  are  not 
wanting.  Almost  everywhere  theft  is  punished,  violence  is 
esteemed  a  crime  ;  blood-revenge, with  compositions  by  money 
and  weregild,  points  at  a  sense  of  wrong  and  of  injury  done 
to  a  family  or  a  kindred.  It  is  true  that  conceptions  of  rights 
are  faint,  and  mingled  with  religious  ideas,  it  may  be,  in 
savage  tribes  ;  but  it  is  true,  also,  that  moral  and  religious 
ideas  are  equally  undeveloped.     And  when  a  nation  grows  in 


IO  POLITICAL   SCIENCE. 

culture,  there  is  assuredly  no  new  principle  communicated  to 
it,  but  only  a  more  correct  feeling  and  a  sounder  judgment 
are  drawn  forth.  The  savage  state  is  not  the  condition  of 
life  which  shows  us  most  clearly  what  human  nature  is  :  it 
reveals  to  us  man  in  the  most  unfortunate  conditions  and  in 
the  most  imperfect  development. 

4.  Thus,  then,  the  consensus  hutnani generis  that  individual 
4.  Opinion  concern-  men  have  rights   is  universal,   and   the  lowest 

ing  rights  is  not  de-  .  ,  .  ,.  „, 

nved  from  state  law.  races  are  no  exception  to  the  universality.  I  he 
sense  of  rights  is  nearly  as  uniform  and  pronounced  as  that 
men  have  duties  or  that  there  is  a  moral  law.  The  same  gen- 
eral admission  is  seen  when  men  complain  of  a  judge's  unright- 
eous decisions  or  of  political  injustice.  For  instance,  if  a 
judge,  out  of  compassion,  were  to  decide  in  favor  of  a  poor 
man,  giving  him,  on  the  general  principles  of  benevolence, 
what  the  rich  had  owned  in  times  past,  every  one  would  feel 
that  a  wrong  was  done  ;  that  the  judge  was  not  meant  to  be  an 
equalizer  of  comforts,  or  a  distributor  of  good  things,  but  had 
to  deal  with  the  question  of  property  ;  that  the  rule  suum 
cuique  is  his  guide,  and  that  his  feelings  of  compassion  ought 
to  have  no  weight  in  the  case.  But  men  go  in  their  judg- 
ments still  farther  :  they  complain  of  the  law  itself,  as  being- 
unjust,  which  shows  that  they  have  a  standard — true  or  false 
— according  to  which  they  pass  judgment  over  and  against  the 
law  of  the  state. 

But  how  do  we  discover  what  rights  are,  and  what  is  the 
why  do  rights  ex-  rational  ground  on  which  we  can  defend  their 
existence  ?  The  answer  is,  that  the  nature  of 
the  individual  human  being,  his  needs,  the  purpose  implied 
in  his  nature,  especially  in  his  moral  nature,  demand  that  he 
be  invested  with  certain  powers  of  free  action.  The  fact  of 
being  a  man  involves  the  exercise  of  those  activities  which 
arc  necessary  to  sustain  and  unfold  the  nature  of  man.  Thus 
he  cannot  be  a  man  without  keeping  himself  alive,  without 
labor,  without  the  family  state,  without  relations  and  engage- 


GENERAL   EXPLANATION   OF   RIGHTS.  .     «^»f*II 

V 

merits  between  the  members  of  society  or  relations  to  God. 
For  the  great  ends  which  his  existence  as  a  man  in  the  world 
points  out,  he  must  have  a  certain  range  of  free  action.  Thus 
we  may  say  that  the  sum  of  all  rights  amounts  to  this,  that 
every  one  has  a  right  to  be  what  he  was  meant  to  be  ;  that 
he  has  a  right  to  develop  himself;  to  maintain  and  to  carry 
out  his  true  nature. 

And  this  appears  the  more  necessary,  when  we  reflect  that 
without  this  free  action  he  could  not  attain  to  any  high  moral 
elevation  ;  that  his  social,  moral,  religious  nature  needs  these 
rights  as  the  foundation  for  its  development  nor  could  he 
live  in  society  without  a  sense  of  obligation,  which  implies 
the  recognition  of  rights  as  belonging  to  others.  Here  we 
come  to  the  a  posteriori  argument  for  the  existence  of  rights, 
which  Dr.  Whewell  has  made  use  of,*  that  as  men  have  a 
desire  for  objects  in  the  outer  world  which  are  in  the  hands  of 
others,  there  would  be  no  security  in  possession,  but  contin- 
ual struggle  to  get  what  another  has  by  fraud  or  force,  unless 
the  desire  were  controlled  by  the  conception  of  property, 
by  looking  on  a  thing  as  another's  property.  "  In  like 
manner  the  conceptions — of  contract,  of  marriage,  and  the 
like,  restrain  or  limit  most  of  the  acts  to  which  the  uncon- 
trolled desires  and  affections  would  give  rise."  "  So  the 
desire  of  personal  safety  requires  that  there  should  exist 
a  right  of  personal  safety."  "  Without  such  a  right,  the 
desire  would  give  rise  to  a  constant  tempest  of  anger  and 
fear,  arising  from  the  assaults,  actual  or  apprehended,  of 
other  men."  To  all  which  it  might  be  replied  that  it  does 
not  appear  that  brute  animals  recognize  the  rights  of  each 
other,  while  yet  they  get  along  tolerably  well  in  their  inter- 
course within  their  own  kind  by  some  sort  of  social  feeling. 
The  exposition  is  hardly  conclusive,  unless  you  take  into 
account  man's  moral  nature.  Obligation  goes  along  with  the 
recognition  of  rights.  "You  have  a  right  to  a  thing,  and 
therefore,  I  have  no  right  to  take  it  from  you."     These  two 

*  Elem.  of  moral.     Book  I.,  chap,  iv.,  p.  78. 


12  POLITICAL   SCIENCE. 

propositions  complete  the  appeal  to  the  moral  sense.  But 
when  we  conceive  of  a  being  with  such  immense  desires  sup- 
ported by  such  resources  as  man,  it  would  seem  to  be  a  curse 
for  him  to  have  them,  if  they  must  conflict  with  other  similar 
desires  eternally  ;  and  so  the  final  cause  of  implanting  a  sense 
of  obligation  in  his  nature  is  apparent,  for  this  is  the  great 
controlling  force — this  leads  to  law  and  public  control  over  the 
wrong-doer.  The  mere  conception  of  property,  however,  if 
we  could  conceive  of  it  apart  from  obligation,  would  only 
bring  into  the  mind  the  wrath  caused  by  invasions  of  property. 

These  three  considerations,  then  :  the  general  consent  of 
mankind  embodying  rights  and  enforcing  the  obligations  to 
respect  them  by  law  and  punishment ;  the  proper  estimate  of 
the  destination  of  the  individual,  requiring  that  he  have  a 
power  of  free  action  in  certain  directions  for  the  development 
of  his  nature  ;  and  the  demand  of  a  check  on  aggressions 
caused  by  excited  desires,  which  would  necessarily  ruin  man 
if  a  sense  of  obligation  did  not  form  a  part  of  his  being — these 
show  that  the  possession  of  rights  recognized  by  others  be- 
longs to  man,  and  could  not  be  practically  denied  without 
extreme  evil. 

One  course  of  thought  shows  the  importance  of  obligations 
importance  of  the  as  correlative  to  rights.  The  existence  of  a 
sense  of  obligation.  right,  pertaining  to  any  one  or  inherent  in  any 
one,  implies  an  obligation  laid  on  every  other  one,  and  so 
there  are  innumerable  moral  threads,  so  to  speak,  passing 
from  every  person  to  all  others,  and  binding  their  consciences 
to  observe  the  same  rule  of  non-intrusion  upon  the  rights  of 
others  which  they  claim  as  a  protection  for  themselves. 
Without  this,  which  may  be  called  the  moral  factor  in  jural 
science,  the  science  would  have  no  connection  with  ethics,  for 
the  exercise  of  rights,  which  are  free  powers  of  action,  implies 
no  moral  quality  whatever.  A  man  may  exert  his  right  of 
acquiring  or  holding  property  with  entire  selfishness  or  disre- 
gard of  others'  welfare,  and  yet  their  obligation  arising  from, 
or  correlative  with  his  right  of  property  continues.  Only 
when  he  injures  them — that  is,  violates  one  of  their  rights  and 


GENERAL   EXPLANATION   OF   RIGHTS.  13 

his  own  obligation  in  the  use  of  this  property,  is  he  jurally 
accountable.  And  yet  he  may  commit  a  moral  wrong  in  the 
use  of  the  same  property  all  the  time. 

The  possession  of  rights  is  necessary  for  the  highest  moral 
Rights  necessary  development.     This  is  shown  by  two  considera- 

for   moral    develop-       .  m 

mem.  tions.      The  person  deprived  of  all  rights  is  cut 

off  from  almost  all  the  ways  of  doing  good  to  others,  and  from 
nearly  all  the  motives  which  raise  one  above  a  listless,  sensual 
life.  Let  but  the  acknowledgment  of  the  right  of  property 
disappear  from  the  minds  of  men,  and  there  could  be  no 
property  and  no  civilization.  At  the  same  time  there  could 
be  no  industry,  no  life  with  plans  looking  far  ahead  ;  and  in 
relation  to  other  human  beings  there  would  be  constant  sus- 
picion and  fear.  Thus,  although  rights  may  be  exercised 
without  any  morally  good  quality  by  him  who  is  endowed  with 
them,  they  are  essential  to  the  manhood  of  the  individual,  to 
the  proper  development  and  the  perfection  of  human  life. 
They  are  franchises,  and  man  cannot  be  a  man  unless  he  is 
free. 

The  feeling  of  obligation  which  is  collateral  to  rights  cannot 
be  regarded  as  a  benevolent  grant  or  tribute  paid  to  another, 
nor  can  it  be  explained  merely  as  a  deduction  from  principles 
of  utility,  as  the  teaching  of  experience  in  regard  to  the  great- 
est amount  of  individual  and  social  happiness.  It  is  true  that 
the  utilitarian,  when  he  looks  at  the  part  which  this  feeling  or 
conviction  plays  in  securing  the  sway  of  justice  and  keeping 
society  together,  has  a  sound  reason  for  accepting  of  it  as 
necessary  in  the  social  and  jural  system.  But  it  is  more 
deeply  implanted  in  our  nature  than  any  .utility,  than  any 
means  to  a  desired  end.  It  is  as  inevitable  a  rule  for  con- 
science and  for  abstaining  from  an  invasion  of  the  rights  of 
others,  as  the  rights  are  a  justification  of  free  action.  Let  me 
believe  that  a  man  is  free — that  is,  has  a  right  to  the  use  of  a 
given  thing  or  to  the  performance  of  a  given  action,  and, 
whether  this  be  true  or  not,  I  cannot  avoid  the  conviction 
that  it  is  wrong  for  me  to  interfere  with  his  freedom  in  that 
particular. 


14  POLITICAL   SCIENCE. 

We  are  now  prepared  to  show  the  relations  between  the 

Relations  of  rights  Jural  and  moral  departments  of  ethics,  or  be- 
tween the  sphere  of  rights  and  obligations  and 
the  sphere  of  moral  claims  and  duties. 

i.  The  moral  comprehends  the  jural.  Let  it  be  conceded 
that  a  man  ought,  according  to  right  reason,  to  have  the 
power  of  free  action  and  to  be  a  law  to  himself  within  certain 
limits  ;  this  does  not  remove  his  exercise  of  his  rights  in  each 
particular  case  from  the  control  of  the  law  of  duty ;  that  is 
still  supreme  and  universal.  He  may  have,  for  instance,  the 
right  to  burn  up  a  roll  of  bank-bills  or  destroy  a  precious  pic- 
ture ;  but  it  may  be  wrong  for  him  to  use  his  property  in  this 
way,  although  his  right  may  make  it  wrong  for  others  to  con- 
trol him.  So,  in  very  innocent  actions,  as  in  acting  accord- 
ing to  the  right  of  locomotion,  it  may  be  wrong  for  him  to 
do  this  in  his  circumstances.  The  law  of  free  action  and  the 
rules  of  duty  must  be  reconciled  by  giving  the  supreme  con- 
trol to  the  latter.  Duty  follows  the  man  endowed  with  rights 
by  the  side  of  his  freedom,  telling  him  that  the  freeman  has 
his  responsibilities  from  which  no  amount  of  freedom  can 
deliver  him.  Nay,  the  greater  the  freedom,  the  greater  the 
responsibilities.  It  can  never  be  too  often  repeated  in  this 
age  that  duty  is  higher  than  freedom,  that  when  a  man  has  a 
power  or  prerogative,  the  first  question  for  him  to  ask  is, 
"  How  and  in  what  spirit  is  it  my  duty  to  use  my  power 
or  prerogative  ?  What  law  shall  I  lay  down  for  myself  so 
that  my  power  shall  not  be  a  source  of  evil  to  me  and  to 
others  ?  " 

The  principle  thus  laid  down,  however,  does  not  imply 
that  a  man  who  commits  immoral  acts  in  the  exercise  of  a 
general  right,  as,  for  instance,  one  who  uses  his  property  to 
circulate  obscene  books  or  to  set  up  a  cockpit,  is  to  be  the 
sole  law  for  himself,  and  is  not  to  be  interfered  with  herein  by 
the  state.  The  contrary,  which  we  hold  to  be  true,  we  shall 
endeavor  to  show  in  another  place.  (§  81.) 


GENERAL   EXPLANATION   OF   RIGHTS.  15 

2.   Rights  may  be  waived.     The  very  nature  of  a  right  im- 
Rights   may  be  plies  that  the  subject  of  it  decides  whether  he 

waived,  but  not  alto-  .  .  . 

gether.  shall  exercise  it  or  not  in  a  particular  case.     To 

require  him  to  exercise  a  right,  to  force  him  to  make  a  con- 
'  tract,  the  contract  of  marriage,  for  instance,  is,  in  the  very- 
statement  of  it,  an  apparent  contradiction.  There  are,  indeed, 
certain  so-called  political  rights,  which  citizens  or  subjects 
have  sometimes  been  required  to  perform.  Of  these  we  shall 
speak  hereafter,  contenting  ourselves  with  saying  here  that 
they  are  not  rights  in  the  same  sense  with  those  pertaining  to 
the  individual  man  according  to  his  nature  and  the  destination 
of  his  being,  which  now  concern  us.  Again,  some  states, 
conceiving  of  state-life  as  family  life  on  a  large  scale,  prevent 
a  man  from  exercising  his  rights  or  require  him  to  renounce 
them.  But  this  is  immoral  misgovernment.  If  a  person  has 
any  rights,  he  must  and  may  decide  on  his  own  responsibility 
whether  he  shall  in  a  particular  case  exercise  or  renounce 
them.  It  is  hardly  necessary  to  add  that  waiving  is  a  free 
act,  and  that  no  renunciation  of  rights  under  duress  or  by 
constraint  can  extinguish  them,  or  deprive  the  subject  of 
rights  of  them,  except  so  far  as  to  give  a  legal  ground  to  the 
consequences  of  the  act,  when  it  emanates  from  a  power  that 
is  the  fountain  of  positive  law. 

But  it  is  important  here  to  observe  that  this  power  of  waiving 
one's  rights  does  not  mean  that  a  person  is  at  liberty  to  re- 
nounce the  exercise  of  the  right  in  all  future  cases.  Here  the 
moral  reason  for  the  right  must  be  the  determining  considera- 
tion. If  in  general  rights  are  acknowledged  that  the  individ- 
ual may  unfold  his  nature  according  to  its  idea  and  fulfil  the 
destination  of  his  being,  to  abridge  or  destroy  one's  own  rights 
is  the  highest  immorality.  Hence,  as  life  is  the  condition  of  the 
discharge  of  all  rights  and  obligations,  to  take  one's  own  life 
and  thus  put  an  end  to  one's  jural  existence,  is  criminal.  So 
also,  to  become  a  slave  by  a  free  act  of  one's  own  is  criminal. 
Rousseau,  at  the  beginning  of  his  "  contr  at  social"  justly  finds 
fault  with  the  opinion  of  Grotius  that  a  people  may  submit 
itself  to  slavery.  (De  Bell.,  ii.,  5,  31.)     The  most  that  can  be 


16  POLITICAL   SCIENCE. 

said  is  that  a  conquered  people  may  accept  the  ordinances  of 
a  conqueror  as  something  inevitable  ;  but  to  refer  to  such 
submission  as  a  jural  ground  of  an  unrighteous  government 
is  to  confound  a  legal  or  political  condition  of  things,  which 
may  often  be  founded  on  the  highest  unrighteousness,  with  a 
jural  or  just  constitution.  If  slavery  means  the  negation  of  all 
or  nearly  all  rights,  no  one  ought  freely  to  submit  to  it  ;  but, 
as  a  man  in  the  hands  of  a  robber  may  give  up  his  property 
to  save  his  life,  so  a  nation  may  save  itself  from  worse  evils 
by  letting  the  usurper  of  power  have  his  way. 

3.  The  negative  side  in  the  doctrine  of  rights  is  the  most 
The    prohibitory  important,  the  most  essential  side,  in  all  cases 

side  of  rights   most  ...  ..  ....... 

important.  where  the  right  is  strictly  an  individual  one  and 

all  other  persons  are  neutral.  In  cases  of  morals  the  affirma- 
tive or  positive  side  is  often  the  most  important.  Obligation, 
as  correlative  to  rights,  is  prohibitory  or  negative,  and  is  the 
bond  of  society — the  moral  security  of  freedom.  A  man  is 
not  obligated  to  acquire  property  for  another,  nor  to  help  him 
do  this  for  himself — though  the  law  of  benevolence  may  make 
this  latter  activity  right ;  but  is  obligated  not  to  prevent  him 
from  exercising  his  right  of  acquisition,  not  to  injure  his  good 
name,  not  to  interfere  with  his  family  rights,  and  so  on. 
Obligation,  to  a  great  degree,  consists  in  non-interference. 
Hence  it  often,  if  not  generally,  in  laws  takes  a  negative 
form,  as  in  the  decalogue  is  the  case  with  thou  shalt  not  kill, 
steal,  commit  adultery,  bear  false  witness.  Only  the  com- 
mand to  honor  father  and  mother  appears  in  the  affirmative 
form  ;  a  reason  for  which  is  that  the  family  rights,  owing  to 
the  nature  of  the  family,  are  so  bound  up  with  duties  of  sev- 
eral descriptions,  which,  together  with  them,  result  from  the 
family  union,  that  it  would  be  an  incomplete  command  here 
to  prohibit  disobedience  or  irreverence. 

On  the  other  hand,  duties  either  take  the  negative  or  the 
positive  form,  according  to  the  nature  of  the  moral  relation. 
"  Thou  shalt  not  tell  a  lie  "  takes  the  first  form,  but  it  would 
not  be  right  to  say  "  Thou  shalt  not  conceal  the  truth,"  for 
this  may  be  right  in  certain  cases.     So  the  duties  of  charity 


GENERAL   EXPLANATION    OF   RIGHTS.  \J 

to  the  poor,  of  hospitality,  of  patriotism,  and  many  others 
appear  most  naturally  as  positive  precepts. 

The  cases  where  individuals  bind  each  other  to  some  per- 
formance are  peculiar.  Here  the  rights  conveyed  and  obli- 
gations assumed  by  the  parties  are  alike  positive.  For  such 
cases,  compare  what  is  said  of  the  right  of  contract,  §  34.  But 
here  all  persons,  excepting  the  parties  to  the  contract,  are 
simply  obligated  not  to  interfere,  while  they  have  mutual 
obligations  of  a  positive  character. 

4.  The  jural  sphere  includes  only  external  actions  ;  the 
The  jural  sphere  moral  embraces  both  actions  and  interior  states 
external.  Qf  ^e  morai  nature.     If  a  man  discharges  his 

obligations  or  exercises  his  rights  with  any  motive,  good  or 
bad  ;  or  if  he  exercises  his  rights  to  his  own  harm,  or  wastes 
his  property,  while  still  respecting  his  obligations  to  others, 
rights  and  obligations  are  satisfied  ;  law,  so  far  as  it  does  not 
go  beyond  these,  says  nothing  to  him.  There  have  been 
indeed  societies,  chiefly  small,  or  hierarchical  or  patriarchal, 
where  control  over  the  conduct  of  individuals  has  gone  far 
beyond  these  limits  ;  and  we  concede  that  the  law  of  no  state 
can  confine  itself  within  the  narrow  bounds  of  protecting 
rights  and  enforcing  obligations.  But  with  all  this,  as  far  as 
the  jural  sphere  is  concerned,  it  is  impossible  that  command 
or  prohibition  should  go  beyond  the  external  act;  for  rights 
themselves  are  powers  of  specific  external  action. 

On  the  other  hand  the  moral  nature,  when  enlightened,  is 
not  satisfied  with  having  done  or  omitted  an  external  act,  but 
lays  down  for  itself  the  great  laws  of  right  feeling,  and  con- 
demns itself  for  deviations,  ever  so  slight,  from  a  perfect 
standard. 

Thus  jural  science  is  external,  heartless,  and,  if  one  chooses 
to  call  it  so,  pharisaical  ;  it  is  no  rule  for  the  whole  of  life — 
no  safety,  of  itself,  to  society  ;  and  yet,  as  the  foundation  for 
a  right  life  in  a  community,  it  is  supremely  important.  It  is 
a  foundation  on  which  order  and  society  rests,  but  is  no 
exciting  cause  of  virtue,  and  has  nothing  heavenly  about  it. 

It  is  possible,  also,  since  obligations  are  external  perform- 


1 8  POLITICAL  SCIENCE. 

ances,  that  it  may  be  right  to  refuse  to  discharge  them  in 
certain  cases  ;  but  it  can  never  be  right  to  fail  to  do  a  duty. 
For  example,  a  contract  would  not  be  binding  which  required 
that  a  sum  of  money  should  be  paid  at  a  certain  time  to  a 
specific  person,  if  at  the  time  the  payee  should  be  insane. 
Duty  depends  on  an  immutable  moral  law  ;  but  obligation, 
correlative  to  a  right,  may  be  so  injurious  to  the  subject  of 
the  right  that  it  would  be  wrong  to  fulfil  it  in  the  manner  or 
at  the  time  specified.  Agencies,  which  are  forms  of  contract, 
may  present  many  instances  of  this  kind. 

5.   Rights  and  obligations  can  in  a  good  degree  be  sharply 

jural  relations  can  defined,  but  moral  claims  and  duties,  being  de- 
be  sharply  denned.  pendent  to  a  great  extent  on  varying  conditions, 
cannot  be  sharply  defined.  Thus  the  right  of  contract  is  clear 
enough  in  its  general  nature,  although  in  special  cases  it  may 
be  matter  of  doubt  what  the  parties,  or  one  of  them,  ex- 
pected in  making  the  contract.  The  family  state  is  clear,  and 
the  obligations  between  its  members.  But,  on  the  other  hand, 
a  multitude  of  duties  expressed  in  general  terms  are  not 
duties  for  particular  persons  or  on  particular  occasions.  Thus 
the  duty  of  charity  to  the  poor  is  acknowledged  by  a  benevo- 
lent mind  ;  but  in  practice  one  has  to  consider  various  things, 
such  as  his  means  and  the  number  of  demands  upon  him,  the 
relative  claims  of  applicants,  what  others  in  a  community  will 
do,  and  the  interests  both  of  society  and  of  the  needy,  as  affected 
by  benefactions.  No  codes  could  settle  the  doubts  that  may 
arise  in  a  conscientious  mind  in  regard  to  this  duty  ;  no  such 
mind  can  lay  down  absolute  rules  for  itself.  I  have  selected 
a  comparatively  easy  moral  question.  But  when  we  come 
to  some  other  moral  rules,  such  as  those  touching  the  amount 
of  one's  expenses,  style  of  life,  relations  to  one's  neighbor, 
amusements,  use  of  the  tongue,  position  to  be  sought  in  the 
world,  much  greater  perplexity  arises.  We  find  that  for  such 
cases  a  general  rule  can  hardly  be  discovered  ;  that  two  per- 
sons may  have  duties  wholly  diverse,  and  that  in  this  depart- 
ment disposition  rather  than  rule  is  the  guide  to  right  action. 

We  need,  however,  at  this  point,  to  make  two  qualifying 


GENERAL   EXPLANATION   OF   RIGHTS.  19 

remarks.  The  first  is,  that  certain  rights  may  be  capable  of 
a  strict  definition,  while  yet  their  limits  cannot  be  accurately 
fixed.  Examples  are  found  in  the  rights  that  grow  out  of  the 
family  relation,  where  the  time  of  majority  is  in  itself  indefi- 
nite ;  and  in  the  right  of  testament,  where  perhaps  there  is  no 
limit  to  collateral  inheritance  given  in  the  nature  of  the  case. 
While  there  are  reasons,  lying  in  the  nature  of  the  mature 
child  and  his  destination  in  the  world,  why  he  should  be  ex- 
empt from  parental  control,  there  is  no  exact  time  for  such 
exemption  pointed  out.  And  again,  if  the  propriety  of  col- 
lateral inheritance  can  be  argued  from  the  family  union,  it 
cannot  be  laid  down  to  what  remote  degrees  of  kindred  this 
rule  ought  to  extend.  But  the  general  right  of  independence 
of  parental  control,  or  of  collateral  inheritance,  is  not  thereby 
affected. 

On  the  other  hand,  certain  violations  of  moral  order  by 
action  may  be  so  clear  in  their  nature  and  so  harmful  in  their 
tendency,  that  as  far  as  prohibitory  law  is  concerned,  they  do 
not  differ  from  violations  of  rights.  These  will  be  considered 
at  large  when  the  limits  of  state  action  come  under  consider- 
ation. 

§8. 

Since  rights  are  capable  of  tolerably  exact  definition,  they 
can  be  made  the  subject-matter  of  law,  and  it  may  follow  that 
when  obligations  are  violated,  the  injured  person  may  invoke 
the  force  of  the  state,  or  use  force  himself,, it  is  possible,  for 
his  own  protection. 

The  use  of  force  has  been  often,  in  modern  times,  intro- 
use  of  force  no  duced  into  the  definition  of  rights,  as  distin- 
criterion  of  jura.  guishing  them  from  moral  claims  and  corre- 
sponding duties  ;  or,  more  generally,  as  marking  the  differ- 
ence between  the  jural  sphere  on  the  one  hand,  and  the 
spheres  of  morals  and  of  religion  on  the  other.  The  first  to 
put  this  distinction  in  a  clear  light  seems  to  have  been  Tho- 
masius,  a  professor  at  Halle,  and  one  of  the  prime  agents  in 
founding  the  university  in  that  city  (1694).  This  enlightened 
and  tolerant  man  was  led  to  seek  for  a  distinction  between 


20  POLITICAL  SCIENCE. 

the  jural  and  the  moral  by  his  aversion  to  the  persecutions  to 
which  the  Pietists  were  subjected  ;  he  tried  to  draw  the  line 
beyond  which  force  could  not,  according  to  a  right  theory, 
control  human  actions.  One  of  the  many  writers  *  that  have 
followed  him  expresses  himself  thus  :  "  A  right  is  a  possibil- 
ity determined  by  the  law  of  right,  of  imposing  on  others  an 
obligation,  to  the  fulfilment  of  which  they  can  be  held  by 
force.  Thus  to  every  right  an  obligation  according  to  right 
answers,  and  to  every  obligation  a  right  answers." 

It  is  better,  however,  to  regard  the  use  of  force  as  resulting 
from  the  clearness  with  which  the  right  of  the  individual  may 
be  defined,  and  the  consequent  clearness  of  the  obligation  of 
others  and  of  the  wrong  done  when  the  obligation  is  violated. 
•  For,  first,  the  right  is  not  originally  determined  by  the  fact 
that  force  is  used  to  protect  it,   but  by  the   clearness   with 
which  it  can  be  shown  to  pertain  to  the  nature  and  destiny  of 
man.     If  an  individual  is  disturbed  in  his  rights,  that  is,  in 
the  powers  of  free  action   clearly  and  rightfully  belonging  to 
him,  the  state  and  the  court  can  perceive  that  this  is  a  right, 
and  can  give  the  necessary  protection.     Secondly,  sometimes 
violation  of  duty  is  as  plain  as  violation  of  obligation.     Thus 
ingratitude  in  conduct  may  be  as  manifest  as  breach  of  con- 
tract.     Shall  modern   law,  then,  punish   ingratitude,  as  was 
done  of  old  ?      Thirdly,  many  positive  duties  toward  society 
may  be  and  are  secured  by  force,  as  that  of  removing  snow 
from  the  sidewalk  in  front  of  a  man's  house.      Even  duties 
declared  by  the  state  to  be  religious,  such  as  attending  divine 
service  at  the  parish  church  on  Sunday,  have  been  enforced  by 
the  danger  of  fine  or  imprisonment  for  non-performance.     And 
fourthly,  there  is  a  large  class  of   immoral  acts   committed 
against  the  welfare  of  society  which  states  have  always  under- 
taken to  punish,   such  as  prostitution,    distributing   obscene 
^>ooks  or  prints,  and  even  cruelty  to  animals.      Here  the  act 
is  a  clear  and   definite   one,  although  there  is  no  violation  of 
an  obligation  to  an  individual  attending  it.      Such  acts  states 

*  Zacharia?,  vierzig  Biicher  voin  Staate,  i.  3. 


GENERAL  EXPLANATION   OF   RIGHTS.  21 

will  always  frown  on  with  more  or  less  severity,  either  be- 
cause this  is  demanded  by  the  moral  sentiment  or  by  the 
supposed  good  of  the  community,  or  for  other  plausible 
reasons.  Thus  it  appears  that  it  is  not  wholly  peculiar  to 
rights  and  obligations  that  they  can  be  protected  or  made  to 
be  fulfilled  by  force.  It  may  indeed  be  said  in  regard  to  the 
other  cases  just  now  mentioned  that  force  can  be  justified  by 
the  destination  of  the  state  to  be  the  protector  of  common 
interests.  This  high  vocation  gives  it  rights,  and  so  disobe- 
dience to  laws  which  do  not  regulate  relations  between  man 
and  man  is  a  breach  of  obligation  to  the  state.  The  state, 
we  answer,  has  rights  and  obligations,  but  the  cases  supposed 
are  not  instances  of  them.  Such  laws  prohibiting  immoral 
action,  prohibiting  even  the  immoral  exercise  of  personal 
rights,  are  restrictions  on  freedom.  They  call  for  obedience 
on  all  alike  ;  if  disobeyed  they  are  followed  by  penalties  which 
never  visit  violations  of  obligations  between  man  and  man  as 
such — in  short,  they  have  not  the  characteristics  of  laws  en- 
forcing obligations,  but  those  rather  of  laws  enforcing  general 
morality,  and  only  by  indirection  enforcing  private  obliga- 
tions. We  must,  then,  as  it  seems,  either  take  the  position 
that  law  ought  to  confine  itself  strictly  within  the  sphere  of 
individual  acts,  to  rights  and  obligations,  or  must  hold  that 
force  may  go  beyond  acts  which  are  of  a  jural  character.* 

Thus  it  becomes  apparent  that  the  recognition  of  the  rights 
Law  and  society  of  the  individual,  as  they  are  pointed  out  by  a 

dependent  on  recog-       ,  . 

nition  of  rights.         right  view   of   human   nature,    is    necessary,   m 
order  that  upon  them  may  be  founded  a  body  of  laws  and 

*  I  am  well  aware  that  it  will  be  contended,  and  with  some  justice, 
that  most  actions  which  are  punished  as  being  immoral  or  as  disturbing 
the  public  peace,  have  their  criminal  character  explained  on  the 
ground  that  they  tend  to  produce  disrespect  of  private  rights,  expose 
to  hazard  the  interests  of  property  and  the  like.  But  why  should 
they  be  punished,  if  violations  of  private  rights  which  may  be  far 
more  serious  evils,  are  not  punished  ?  Does  not  this  criterion  show 
that  states  feel  the  necessity  of  protecting  society  against  some  evil 
which  is  not  violation  of  rights  ? 


22  POLITICAL   SCIENCE. 

securities,  without  which  the  perfection  of  the  individual,  the 
progress  of  society  in  good,  and  the  highest  forms  of  virtue 
cannot  exist.  For,  I.  The  cultivation  of  the  individual 
would  not  be  possible,  if  he  did  not  feel  himself  able  to  use 
the  powers  or  faculties  of  action  which  are  implied  in  human- 
ity itself.  2.  There  could  be  no  advance  in  society  beyond 
the  very  cradle  of  civilization,  if  a  feeling  of  obligation  were 
not  supported  by  the  force  of  society ;  for  fear  and  anger 
would  take  the  place  which  now  calm  provision  for  the  future, 
hopefulness,  ability  to  do  all  that  becomes  a  man  to  do,  occu- 
py. 3.  Virtue  might,  it  is  conceivable,  exist  in  any  form  of 
life.  A  man  deprived  of  his  property  by  robbing  or  fraud,  or 
with  his  eyes  put  out  or  his  limbs  cut  off,  might  have  the  most 
Christ-like  sentiments  ;  but  if  there  were  no  security  and  no 
advance  possible  among  our  fellow-men,  the  motives  of  action 
would  be  cut  off,  and  the  number  of  virtues  that  were  possi- 
ble would  be  greatly  abridged.  As  there  could  be  no  labor 
for  the  man  without  limbs,  so  there  could  be  no  results  of 
labor,  no  motive  to  labor  without  property,  and  thus  no 
property  ;  and  hence  the  virtues  which  presuppose  the  exis- 
tence of  property  would  be  impossible.  Instead  of  them 
would  be  the  malignant  or  selfish  excitements  growing  out  of 
fear  of  invasions  of  rights,  and  a  listlessness  and  indolence 
which  would  thwart  all  attempts  to  do  anything  beyond  pre- 
serving our  existence. 

§  10. 
The  doctrine  of  rights,  as  thus  explained,  contemplates  the 
Rights  imply  co-  co-existence  of  beings  equally  partakers,  through 
existence  of  men.  their  common  human  nature,  of  jural  relations. 
It  would  be  of  no  use  or  significance,  if  men  were  isolated 
beings.  And  if  their  nature  changed,  there  would  be,  as  we 
have  already  said,  a  change  of  rights,  or  rights  would  entirely 
disappear.  Thus,  if  beings  needed  neither  food,  raiment,  nor 
shelter,  the  right  of  property  would  have  no  meaning,  and 
would  never  be  suggested  by  the  actual  form  of  existence. 
If  men  sprang  out  of  the  ground  separately,  there  would  be 


GENERAL  EXPLANATION   OF   RIGHTS.  23 

no  marriage  nor  family  rights.  But  as  the  rights  of  contract, 
reputation,  property,  the  family,  point  to  the  coexistence  of 
many,  the  sense  of  obligation  arises  to  prevent  encroachments. 
Separate  rights,  therefore,  so  far  from  separating  men,  make 
it  possible  to  be  free  and  at  peace,  where  all  have  common 
desires  ;  and  where  rights  alone  would  lead  to  a  selfish  society, 
the  correlative  sense  of  obligation  serves  as  a  check,  and  gives 
room  for  the  social  sympathetic  feelings  to  bind  the  commu- 
nity together. 

Kant's  definition  of  right  or  jus  is  valuable,  as  contempla- 
ting this  coexistence  of  human  beings,  and  as  reconciling  the 
freedom  of  the  individual  with  a  life  in  society  to  which  our 
destination  points  us.  He  defines  right  or  jus  to  be  "  the  sum 
total  of  the  conditions  under  which  the  outward  freedom  of 
every  one  can  subsist  together  with  that  of  every  other, 
according  to  a  general  principle  of  liberty."  Right  or  jus, 
then,  has  only  the  negative  quality  of  securing  one  from  the 
invasions  of  others  ;  and  the  feeling  of  rights  as  pertaining  to 
others,  together  with  law  in  the  state  conformed  to  it,  depend 
on  the  personality  and  liberty  of  the  individuals  of  whom  a 
society  consists.  This  definition  is  defective,  as  making  lib- 
erty an  end  in  itself.  If  liberty  is  freedom  to  choose,  then 
mere  freedom,  irrespective  of  the  objects  presented  to  the 
choice,  i.  e.,  of  the  motives  appealing  to  the  sensitive  and 
moral  nature,  is  without  meaning,  and  cannot  be  an  end.  If 
it  be  freedom  to  attain  to  or  strive  after  certain  objects  con- 
ceived or  felt  to  be  good,  then  it  is  another  name  for  rights, 
as  the  right  of  locomotion  is  the  power  of  free,  unhindered 
locomotion,  and  the  right  of  property  the  power  of  acquiring 
property  without  being  prevented. 

The  considerations  that  men  exist  together  in  society,  that 
they  have  an  irresistible  impulse  towards  society,  that  their 
perfection  of  soul  and  of  outward  condition  can  be  secured 
only  in  a  social  life,  and,  on  the  other  hand,  that  recognition 
of  rights  and  obligation  alone  make  a  social  life  a  tolerable  or 
even  a  possible  thing,  and  that  wherever  men  reflect  on  their 
own  nature  they  admit  the  existence  of  certain  classes  of 


24  POLITICAL  SCIENCE. 

rights  and  shield  them  by  public  power,  show  a  divine  pur- 
pose which  none  who  believe  in  a  Creator  of  the  world  can 
deny.  The  Creator  of  man,  having  made  him  such  that 
his  temporal,  moral,  and  spiritual  perfection  can  be  found 
only  in  society,  prepared  his  moral  feelings  for  the  life  for 
which  he  was  destined.  The  destination  for  society ;  the 
means  within  human  nature  by  which  it  is  fulfilled ;  the 
means  by  which  the  individual  and  the  community,  when 
brought  into  society,  are  able  to  secure  the  good  and  avoid 
the  evils  possible  in  a  state  of  coexistence — these  form  a  com- 
plete, harmonious  whole,  which  manifest  comprehension  of 
view  and  forethought.  It  is  provided  in  our  nature,  when  it 
is  not  perverted — that  is,  when  it  does  not  swerve  from  the 
true  idea  of  human  nature — that  we  shall  form  societies  under 
law.  A  state  of  society  is  a  state  of  nature,  and  the  only 
true  one. 

§11. 
When  therefore  natural  rights  are  spoken  of,  we  can  accept 
the  term,  if  it  be  used  to  denote  such  rights  as 

Natural  rights.  . 

grow  out  of  our  nature,  and  may  be  interred 
from  the  destination  to  which  it  points  us.  Another  and 
a  heathenish  kind  of  sense  was  attached  to  the  words,  when 
they  were  taken  to  mean  the  rights,  or  rather  uncontrolled  lib- 
erties, which  men  possessed  in  a  state  of  human  nature  in 
which  there  was  no  organized  society  or  government.  Some 
of  the  Greek  writers  led  the  way  to  this  theory  by  deriving 
the  condition  of  men  from  a  time  when  the  life  of  man  was 
bestial,  without  law  or  penalty.  These  securities  were  intro- 
duced to  begin  a  state  of  order  in  the  world.  But  they  could 
not  reach  actions  that  were  secret,  and  so  some  deep-thinking 
man,  in  order  to  make  the  bad  afraid,  invented  the  doctrine 
of  the  gods.*     The  theory,  however,  which  explains  natural 

*  See  the  fragment  imputed  to  Euripides  by  Plutarch,  de  plac. 
philos.,  No.  vii.,  and  usually  to  Critias,  as  Sext.  Empir.  has  done,  p. 
402,  ed.  Bekker,  where  the  whole  passage  is  given.  Comp.  a  fragment 
of  Moschion  in  Stob.,  ed.  phys.,  i.,  8,  38,  as  also  the  end  of  the  sixth 
book  of  Lucretius,  and  a  passage  in  Lactantius,  de  inst.  div.,  vi.,  10. 


GENERAL   EXPLANATION   OF   RIGHTS.  25 

rights  by  a  state  of  nature,  does  not  need  to  start  from  a  sav- 
age condition  of  mankind.  It  contemplates  men  as  enjoying 
certain  powers  of  free  action  in  this  state  of  nature,  and  these 
powers  must  serve  for  a  foundation  of  their  state  as  members 
of  society,  or  so  many  of  them  as  it  cannot  be  shown  that  they 
gave  up,  in  order  to  make  a  state  of  law  and  order  possible. 
In  other  words,  the  theory  of  the  derivation  of  these  rights 
from  a  state  of  nature  may  take  a  hypothetical  shape,  and  de- 
duce rights  from  what  a  man  could  do  in  a  state  of  things 
which  exists  only  in  a  jural  fiction. 

The  aim  of  these  speculations  was  to  find  a  representation 
of  man's  state,  by  which  he  should  appear  as  free  as  possible, 
and  to  find  a  foundation  for  rights  which  could  not  be  over- 
thrown by  the  doctrine  that  they  are  creations  of  law  and 
civil  order,  and  must  bend  to  circumstances.  We  find  no 
fault  with  the  objects  which  the  theories  had  in  view,  but  with 
their  want  of  conformity  to  truth.  It  must  be  pronounced, 
in  the  first  place,  contrary  to  fact  that  such  a  state  of  nature 
ever  existed.  Man  has  always  been  under  law  ;  he  is  a  irdki- 
tikov  £o)ov.  The  family  takes  him  first  under  his  care,  and  he 
is  there  trained  up  for  law.  He  never  existed  in  an  earlier 
state  of  isolation.  Secondly,  if  it  could  be  shown  that  he 
had  such  an  origin,  it  would  prove  nothing.  The  question  is, 
To  what  does  our  nature  point — what  relations  in  civil  life  do 
we  need  to  have  towards  our  fellows,  that  the  ends  of  our  life 
may  be  placed  within  our  reach  ?  If  it  could  be  shown  that 
man  had  been  developed  in  the  course  of  ages  out  of  other 
forms  and  ranks  of  being,  standing  lower  down  the  farther 
you  go  back,  this  would  not  bear  upon  his  rights  and  obliga- 
tions now.  If  it  is  necessary,  for  the  fulfilment  of  the  purposes 
implied  in  his  nature  as  it  now  exists  and  has  existed  within 
the  historical  period,  that  in  the  society  of  his  fellow-men  he 
should  now  have  certain  powers  of  free  action,  that  there 
should  be  certain  metes  and  bounds  beyond  which  other  men 
should  not  pass,  that  is  enough.  His  primeval  origin  is  im- 
material for  our  purpose.  If  men  can  now  feel  the  obligation 
to    respect  each  other's  rights — if  now  they  can,   with  this 


26  POLITICAL  SCIENCE. 

moral  sense,  enter  into  jural  society,  the  doctrine  of  rights  and 
obligations  has  a  broad  enough  foundation.  It  is  unnecessary 
to  go  back  to  the  infancy  of  the  individual,  or  to  that  of  the 
race,  or  to  some  possible  early  condition  when  the  race  had 
not  yet  become  men. 

We  mean  then  by  natural  rights  those  which,  by  fair  deduc- 
tion from  the  present  physical,  moral,  social,  religious  char- 
acteristics of  man,  he  must  be  invested  with,  and  which  he 
ought  to  have  realized  for  him  in  a  jural  society,  in  order  to 
fulfil  the  ends  to  which  his  nature  calls  him. 

§  12. 

It  is  manifest  from  this  exposition  that  there  ought  to  be 
jural  science  must  no  surprise  if  there  has  been  a  progress  in  the 
be  progressive.  doctrine  of  rights  and  obligations.  The  earlier 
societies  of  men  either  allowed  so  much  license  that  individual 
rights  were  not  distinguished  from  individual  powers,  or  the 
individual  was  controlled  to  that  degree  that  rights  were 
scarcely  recognized.  Even  in  the  family  the  father's  power 
was  misunderstood,  so  that  the  child  was  his  chattel,  rather 
than  a  being  committed  to  his  charge,  to  be  trained  up  for  a 
just  life  and  for  God.  It  is  not  strange  that  neither  the 
Greeks  nor  the  Romans  conceived  distinctly  of  a  sphere  with- 
in the  state  and  under  state  law,  where  the  will  of  the  indi- 
vidual should  have  the  decisive  voice  and  no  state  law  should 
control  him.*  For  to  them  the  individual  man  did  not  pre- 
sent himself  in  his  true  importance  ;  the  state  in  its  freedom 
and  independence  was  to  control  all  within  its  limits,  direct- 
ing their  education,  and  in  fact  the  manner  of  their  lives  with 
reference  to  the  good  of  the  community.  Christianity,  by 
revealing  the  worth  of  the  individual,  makes  rights  and  obli- 
gations more  precious,  and  especially  adds  new  sanctity  to 
family  rights,  and  to  those  which  have  to  do  with  religion. 

*  Comp.  what  is  said  of  the  state  according  to  the  view  of  classical 
antiquity,  §  58  infra,  and  see  Hildebrand,  Gesch.  d.  Rechts-philos.,  i., 


GENERAL   EXPLANATION   OF   RIGHTS.  27 

§    13. 

If  rights  rest  on  the  foundation  of  a  common  nature,  all 
must  have  an  equal  share  in  them,  they  must  be 

Equality  of  rights. 

the  same  tor  all,  and  so  all  must  have  common 
obligations.  There  is  no  reason  why  one  should  have  more 
or  higher  rights  than  another,  because  he  is  richer,  or  more 
powerful,  or  stronger,  or  of  better  birth  ;  for  these  differences 
between  men  affect  position  in  life,  they  do  not  imply  differ- 
ences of  nature.  A  man  may  by  his  own  choice  remain  a 
poor  man,  and  cut  himself  off  from  the  acquisition  of  property, 
or  may  not  enter  into  the  family  state ;  but  the  right  exists 
Exception  to  equal-  still.  It  must  be  added,  however,  that  there 
ity  of  nghts.  are  imperfect,  i.  e.,  undeveloped  human  beings, 

whose  nature  as  yet  does  not  at  all  fit  them  for  the  exercise 
of  rights,  and  who  can  scarcely  be  called  responsible  for  the 
fulfilment  of  such  obligations  as  rest  on  others.  Such  are 
children,  who  are  growing  up  to  exercise  rights  on  a  level 
with  others,  but  as  yet  are  incapable  of  intelligent  action. 
They  may  be  owners  of  property,  but  have  not  the  legal  con- 
trol over  their  property  in  order  that  they  may  be  protected 
against  their  own  possible  acts  and  the  fraud  of  others.  For 
their  future  entrance  into  the  condition  of  full  human  nature, 
it  is  necessary  that  they  be  kept  from  injuring  themselves 
now.  So  idiots,  through  their  lives,  and  insane  persons,  for  a 
time  at  least,  being  not  fully  men,  are  not  competent  to  exer- 
cise the  rights  of  men.  These  limitations  are  just,  as  well  as 
humane. 

Another  remark  needs  to  be  made  in  regard  to  political 

Political  equality  equality,  which  must  be  repeated  and  defended 

is  another  thing.       more  at  large  in  anotner  place .     When  we  affirm 

that  rights  are  according  to  right  reason  equal,  we  do  not  in- 
tend to  include  what  are  called  political  rights.  It  may  be 
that  under  a  good  government  such  so-called  rights  ought  to 
be  granted  to  all.  But  we  deny  that  they  are  rights  in  the 
sense  in  which  the  rights  of  property  and  of  contract  arc  such. 
The  right  of  suffrage  is  so  restricted  in  the  freest  societies 


28  POLITICAL   SCIENCE. 

as  to  the  time  of  exercising  it — which  is  but  a  single  moment, 
perhaps,  in  a  whole  year ;  as  to  the  persons  who  exercise  it, 
who  must  reach  the  years  of  discretion  ;  as  to  the  persons 
eligible  for  office,  who  may  be  but  a  small  part  of  a  commu- 
nity ;  and  also  as  to  the  numbers  who  are  thus  selected  for  office 
compared  with  the  numbers  who  are  appointed  without  a  vote 
of  the  people — that  it  has  not,  in  fact,  the  full  characteristics 
of  a  right,  and,  if  it  had,  it  might  ruin  a  country.  The  right 
to  hold  office  is  still  more  restricted,  and  depends,  not  on  the 
will  of  the  person  chosen,  but  on  that  of  his  electors  or  ap- 
pointers.  These  rights,  then,  are  rather  privileges  involving 
duty  ;  and  thus,  in  some  countries,  to  neglect  a  vote  is  in  some 
way  punishable,  whereas,  if  it  were  a  right,  it  might  be  waived. 
And  here,  perhaps,  we  may  fitly  notice  the  two  kinds  of 
Plato's  two  kinds  equality  of  which  Plato  speaks  in  the  Laws,  vi., 
of  equality.  ?  ^  c  ?  and  in  Gorgias,  §  63,  508  A.     The  one 

he  calls  in  the  latter  place  geometrical  equality,  the  opposite 
to  having  more  than  one's  share ;  the  other  assigns  more  to 
the  greater  and  less  to  the  smaller,  giving  to  each  what  is 
commensurate  to  his  nature,  and  hence  always  greater  honors 
to  those  who  are  greater  in  respect  to  their  virtue  ;  but  to 
those  who  stand  in  the  contrary  relation  towards  virtue  and 
culture,  it  assigns  what  is  becoming  to  each  one  in  a  due  pro- 
portion. This  thought  is  thus  expressed  by  a  contemporary 
of  Plato,  Isocrates  (Areopagit,  p.  144,  ed.  Steph.),in  speaking 
of  the  early  Athenians  :  "  The  greatest  influence  in  favor  of 
the  good  government  of  the  city  was,  that,  whereas  there  are 
conceived  to  be  two  kinds  of  equality — the  one  assigning  the 
same  to  all,  and  the  other  assigning  what  is  fit  and  suitable  to 
each — they  did  not  fail  to  perceive  which  was  the  most  useful, 
but  rather  disapproved  of  that  kind  which  held  the  good  and 
the  bad  to  be  worthy  of  the  same  things,  as  being  not  just, 
and  rather  preferred  that  kind  which  honors  or  punishes  each 
one  according  to  his  worth.  And  so  by  means  of  this  equal- 
ity they  governed  the  state,  not  in  the  method  of  giving  the 
public  offices  to  all  by  lot,  but  in  that  of  preferring  the  best 
and  the  fittest  for  every  sort  of  business." 


GENERAL   EXPLANATION   OF   RIGHTS. 


29 


As  the  ancients  started  from  the  state  and  its  interests  in 
their  judgment  of  what  the  individual  ought  to  do  and  to  have 
in  the  community,  they  naturally  merged  or  confounded  in- 
dividual rights  with  the  necessities  and  rights  of  the  state.  If 
there  had  been  a  clear  distinction  between  personal  and  polit- 
ical rights,  they  would  more  easily  have  reached  the  principle 
of  equality  in  the  former  sphere,  while  they  retained  the  prin- 
ciple of  worth  or  fitness  for  state  service  in  the  latter.  In 
criminal  law,  however,  they  felt  that  each  must  be  treated 
according  to  his  due — that  is,  according  to  "  geometrical 
equality." 

§  14. 
There  are  some  classes  of  duties  which  lie  on  the  border- 
Relations  of  rights  nne  °f  obligations,  so  that  it  is  hard  to  distin- 

to  the  law  of  honor.     gujsh  them>        g^   ^  ^^  whjch  ^  required 

under  the  law  of  honor.     What   is    honor  ?     According   to 
Wordsworth,  it  is 

"  The  finest  sense 
Of  justice  which  the  human  mind  can  frame, 
Intent  each  lurking  frailty  to  disclaim, 
And  guard  the  way  of  life  from  all  offence 
Suffered  or  done." 

The  poet  has  honor  between  states  especially  before  his 
mind,  but  his  words  will  apply  where  the  private  relations  are 
taken  into  account.  Honor  is  either  broadly  a  sentiment 
connected  with  a  high  standard  of  character  in  all  acts  of  in- 
tercourse with  our  fellow-men,  or  more  narrowly  a  nice  sense 
of  justice,  rendering  to  them  what  is  their  due,  and  demand- 
ing from  them  what  is  due  to  us.  Its  relations  are  closest  to 
the  right  of  reputation,  which  is  the  most  intensely  personal 
and  subjective  of  all  rights  in  civilized  society.  Where  inju- 
ries without  cause  to  the  feelings  of  others,  insults,  exposure 
of  them  to  public  ridicule,  are  of  enough  account,  a  personal 
right  is  clearly  violated  ;  but  there  are  a  thousand  petty  provo- 
cations and  depreciations  of  others  which  can  no  more  be  no- 
ticed than  the  smallest  invasions  of  the  right  of  property.  In 
fact,  since  as  much  offence  may  be  taken  at  neglect  or  slights 


30  POLITICAL   SCIENCE. 

■which  are  thoughtless  or  unintended  as  at  manifest  insults, 
and  since  interpretations  put  on  the  actions  of  another  by  an 
irritated  party  are  often  unfair  ;  there  would  be  more  difficulty 
in  bringing  such  petty  things  under  the  rubric  of  invasions  of 
rights  than  in  noticing  trifling  injuries  done  to  manifest  rights 
by  boys  or  wayfarers.  In  such  cases  the  rule  "  de  minimis 
non  curat  lex  "  must  be  made  practical. 

It  is  worthy  here  of  mention  that  there  are  certain  feelings 
and  modes  of  expressing  them  which  are  thought  and  spoken 
of  under  the  form  of  rights  and  obligations.  Thus  we  say 
that  we  have  not  done  justice  to  a  person  of  whom  we  have 
had  a  bad  opinion  without  reason  ;  and  we  speak  of  treatment 
due  to  another  on  account  of  something  in  himself  or  in  our 
relations  to  him.  These  illustrations,  and  many  more  from 
the  rules  of  gentlemanly  conduct  and  of  propriety  and  cour- 
tesy, might  be  given,  which  will  show  that  there  is  no  exact 
boundary  between  the  domain  of  duties  and  of  obligations, 
of  moral  claims  and  of  rights.  They  shade  off  into  one  an- 
other. And  so  the  law  of  love  may  be  represented  as  a  debt 
due.     "  Owe  no  man  anything  but  to  love  one  another." 

It  has  sometimes  been  represented  that  there  is  an  opposi- 
Reiations  of  rights  tion  between  the  system  of  rights  and  the  spirit 
to  Christianity.  of  Christianity .  The  one  is  self-assertion,  self- 
defence,  the  very  spirit  of  selfishness  ;  the  other  is  self-renun- 
ciation, self-denial,  giving  way  to  others.  The  one  separates 
the  individual  from  the  community,  the  other  unites  men 
together  ;  the  one  causes  wars  and  fightings,  the  other  is  the 
spirit  of  universal  peace.  It  is  not  to  be  denied  that  the  two 
differ  in  their  nature,  and  in  the  feelings  as  well  as  the  rela- 
tions on  which  they  are  founded  ;  but  they  are  not  antagonis- 
tic, nor  mutually  destructive.  A  man  cannot  attain  to  the 
perfection  of  his  being  who  acts  solely  under  the  sway  of  that 
part  of  our  nature  which  leads  us  to  prosecute  our  rights  and 
fulfil  our  obligations  ;  and  yet  justice  is  the  stability  of  the 
world,  it  is  the  foundation  of  the  universe.  When  a  man 
waives  his  rights,  it  is  self-renunciation  ;  when  he  does  this  in 
a  Christian  spirit,  it  is  Christian  self-renunciation.     When  one 


GENERAL   EXPLANATION    OF   RIGHTS.  3 1 

waives  his  rights,  he  has  rights  to  waive.  Self-renunciation  it- 
self implies  the  giving  up  of  what  is  our  own  for  the  sake  of  a 
greater  good.  When  one  fulfils  his  obligations,  so  far  forth  he 
does  well;  and  if  Christianity  did  not  quicken  the  action  of 
conscience  in  urging  him  to  do  this,  there  would  be  a  flaw  in 
it — it  would  be  indifferent  to  true  morality.  A  man  who  has 
rights  that  are  invaded,  must  consider  whether  it  is  best, 
according  to  the  highest  conceptions  of  duty,  to  enforce  them. 
The  decision  of  the  question  of  enforcing  or  renouncing  must 
be  entrusted  to  a  right  temper.  And  this  decision  must 
vary  with  circumstances;  as  we  find  the  Apostle  Paul  at  one 
time  suffering  persecution  without  complaint,  at  another  re- 
quiring the  praetors  at  Philippi,  who  had  unjustly  put  him  in 
prison,  to  come  personally  and  take  him  out. 

We  may  add  to  this  that  if  there  were  no  rights  and  obli- 
gations admitted  by  men,  there  could  be  no  society  and  no 
law.  Thus,  the  results  of  the  realization  of  rights  in  the  state, 
such  as  security  of  acquisition,  productiveness  of  labor,  a 
secure  family  life  and  the  like,  being  made  impossible;  Chris- 
tianity itself  would  fare  hardly,  and  practical  benevolence 
would  be  out  of  the  question. 

§15- 

It  has  been  sometimes  said  that  rights  grow  out  of  duties, 

Do  rights  grow  but  a  better  statement  of  the  relations  of  the 

out  of  dunes.  two,  where  they  are  related,  makes  them  both 

dependent  on  the  nature  of  man.*      Thus,  if  man's  nature 

*  See  Trendelenburg,  Naturrecht,  §  46,  ed.  2,  for  the  opposite  view- 
in  a  particular  case.  It  is  the  case  of  a  ship  at  sea.  Such  a  ves- 
sel is  like  a  little  state,  threatened  by  enemies  on  every  side.  Self- 
preservation  requires  the  almost  unlimited  obedience  of  the  sailors  to 
the  captain,  and  of  the  latter  to  the  pilot ;  it  requires  severe  pun- 
ishments for  mutiny,  and  for  assault  on  the  captain,  etc.  "  The 
authority  of  the  captain  over  crew  and  passengers — the  captain's 
rights — depend  on  his  duties,  and  are  given  to  him  on  account  of  his 
duties.  His  duties  do  not  appear  first  on  account  of  his  rights,  but 
his  rights  on  account  of  his  duties."  Then  he  adds,  "  strictly  speaking, 
his  duties  and  rights  have  sprung  out  of  the  same  idea  at  once  and 


32  POLITICAL  SCIENCE. 

were  such  that  separate  and  private  property  satisfied  no  hu- 
man needs,  and  there  were  no  desires  for  the  acquisition  or 
accumulation  of  external  goods,  there  could  be  no  duties  in 
relation  to  the  uses  of  property  ;  economy,  charity,  liberality, 
and  kindred  virtues  could  find  no  place  for  their  exercise. 
So  also,  if  men  grew  out  of  the  ground,  the  family  duties  could 
not  exist.  If,  however,  one  should  say  that  man  was  made 
such  as  he  is,  with  his  free  personality  and  the  rights  attend- 
ing on  it,  that  he  might  the  better  evolve  his  moral  nature, 
that  might  be  indeed  the  reason  for  his  having  rights  and  feel- 
ing that  he  has  them,  but  his  duties  would  not  give  rise  to  his 
rights  or  define  them.  The  various  departments  of  our  nature 
have  reference  to  one  another ;  and  free  individual  action  in 
society  is  as  necessary  for  human  perfection  as  are  the  feeling 
of  responsibility  and  the  perception  of  our  relations  to  man 
and  God,  which  are  the  conditions  on  which  we  can  discharge 
our  duties. 

§  16. 

If  justice  is  correctly  defined  as  the  "  animi  affectio  suum 
Relations  of  rights  cuique  tribuens  "  (Cic,  de  Fin.,  v.,  xxiii.,  65),  it 
can  as  a  quality  of  law  and  of  a  society  only  mean, 
as  far  as  individuals  are  concerned,  the  definition,  protection, 
and  redress  of  the  rights  of  each.  And  so  injustice  is  the 
withholding  from  any  their  due,  as  ascertained  by  a  true  view 
of  rights  and  obligations.  But  as  justice,  in  the  ordinary  use 
of  the  term,  has  two  senses,  namely,  the  one  which  we  have 
given,  and  the  sense  of  awarding  punislimcnt  to  those  to  whom 
it  is  due  (which  is  an  exercise  of  state  power  not  directly  for 
the  sake  of  the  individual  whose  rights  have  been  violated, 
but  for  the  sake  of  the  community  and  of  the  state),  we  may 
class  it  here  with  the  other  kind  of  justice,  and  consider  what 
there  is  peculiar  in  it  hereafter. 

together."  This  latter  is  the  true  statement  as  it  appears  to  me. 
Obligation  correlative  to  rights  does  not  exist  in  this  case,  but  the 
office  is  like  the  political  one  of  a  military  officer,  and  has  for  its 
duties  the  preservation  of  the  crew.  The  captain  of  a  merchant  ves- 
sel has  a  portion  of  public  power  in  his  hands.  My  remarks  relate 
to  duties  growing  out  of  a  relation  from  which  rights  spring. 


GENERAL   EXPLANATION   OF   RIGHTS. 

§  17. 
Rights  are  powers  of  free  action  belonging  of  right  to  the 
Relations  of  rights   individual.      If  law  does  not  withhold  from  him 

to  freedom  and  sla- 
very, any  of  them,  or  wrongfully  limit  him  in  the  ex- 
ercise of  any,  he  is  said  to  be  free,  or  civilly  free.  If  it 
abridges  his  rights,  so  far  forth  it  abridges  his  freedom,  and 
if  it  takes  away  from  him,  or  prevents  his  exercising  many  or 
all  of  them,  we  call  him  a  slave.  Slavery,  therefore,  and 
freedom,  admit  of  degrees.  We  may  therefore  enquire,  in  re- 
gard to  many  classes  or  conditions  of  life,  whether  they  are 
free  or  not,  with  a  degree  of  doubt  as  to  the  answer ;  and 
much  unprofitable  discussion  has  been  wasted  on  the  meaning 
of  these  terms,  which  the  consideration  that  they  are  terms 
admitting  degrees  would  remove.  The  Roman  colonus,  who 
could  not  be  bought  or  sold,  but  could  be  chastised  by  his 
master,  and  could  not  remove  from  his  place  of  labor  at  his 
will,  was  above  the  servus,  who  could  be  bought  or  sold,  and 
could  have  no  property  except  what  his  master  allowed  him. 
Somewhat  above  the  colonics  was  the  Saxon  litus,  who  was 
represented,  it  is  said,  in  councils  of  the  tribes  by  the  side 
of  freemen,  but  in  other  respects  was  like  the  colonus  *  A 
hereditary  tenant  may  have  all  political  rights,  but  is  not  fully 
free  if  he  cannot  become  quit  of  his  obligation  resulting  from 
the  tenure  of  land  by  his  ancestors.  It  will  follow,  then,  that 
the  terms  free  and  slave,  as  being  capable  of  greater  or  less 
comprehension,  are  of  little  use  in  jural  science,  the  main 
question  being,  does  such  a  person  possess,  or  is  he  denied 
the  exercise  of  such  and  such  rights  by  the  law  of  the  country. 
Political  freedom  and  the  want  of  it  belong  to  another 
place.  We  only  add  here  that  there  may  be  all  the  forms 
of  political  freedom  with  no  free  exercise  of  personal  rights 
guaranteed  to  the  individual,  and  with  their  constant  violation 
by  the  community  ;  while,  on  the  other  hand,  it  is  possible, 
where  there  is  no  proper  self-government  or  share  in  public 

*  Comp.  Stubbs,  Cons.  Hist.,  i.,  p.  22. 
3 


34  POLITICAL  SCIENCE. 

power,   for   the   individual  rights  *  to  be  defined  nicely  and 
protected  faithfully. 

§   18. 

It  is  impossible  for  two  persons  to  have  separate  rights  to  the 
same  thing  at  the  same  time,  or  to  the  exclusive 

Collisions  of  ri^ht^.  .     t  ,  _ 

exercise  of  two  rights  at  once  on  the  same  spot  of 
ground.  But  very  often  the  general  right  of  one  may  conflict,  or 
seem  to  conflict  with  the  general  right  of  another.  Thus  there  is 
a  general  right  of  locomotion,  but  two  persons  cannot  have  sim- 
ultaneously the  right  of  moving  over  the  same  identical  spot  of 
ground  at  the  same  time  ;  and  a  general  right  of  contract,  but  a 
conveyance  by  contract  of  some  article  to  one  precludes  the  first 
proprietor  of  it  from  making  the  same  conveyance  to  another. 
There  are  seeming  cases  of  collision  which  must  be  ex- 
plained by  the  essential  limitation  of  certain  rights.  One  of 
these  is  the  right  of  taking  life  in  lawful  self-defence,  as  when 
a  man  is  attacked  by  a  robber.  The  harmless  passenger  and 
the  highwayman  have  both  by  nature  a  right  to  life,  but  the 
right  is  not  unlimited  ;  otherwise  the  state  could  not  take  the 
life  of  the  criminal,  and  the  man  who  respects  his  obligations 
would  be  required  to  renounce  for  ever  the  right  of  self-de- 
fence against  enemies  seeking  his  life.  The  true  statement  is 
that  the  right  of  self-defence  belongs  only  to  the  innocent 
man,  and  not,  in  this  particular  case,  to  the  robber.  He  has 
the  general  right  of  life,  but  now  he  is  in  effect  punished  for  a 
crime,  and  there  can  be  no  punishment  without  deprivation 
of  rights.      Again,  when  a  road  is  constructed  across  a  man's 

*  Mr.  Bentham  says  in  his  rationale  of  punishment,  that  "  Liberty 
being  a  negative  idea  (exemption  from  obligation),  it  follows  that  the 
loss  of  liberty  is  a  positive  idea."  Is  it  not  equally  true,  liberty  being 
a  positive  idea  (including  the  rights  of  free  action),  that  the  loss  of 
liberty  is  a  negative  idea  (viz.,  the  absence,  the  actual  non-existence 
of  civil  rights).  The  status  of  the  slave  consists  in  the  loss  of  various 
free  movements,  one  of  which  alone,  the  right  of  locomotion  in  an 
unrestricted  degree,  would  destroy  the  slavery. 

Would  it  not  be  better  to  say  that  a  right  is  a  power  of  acting  in  a 
certain  specific  way,  and  that  as  the  sum  of  these  powers  constitutes 
liberty,  the  loss  of  liberty  is  the  loss  of  the  powers  of  acting  in  many 
specific  ways,  which  loss  certainly,  and  not  liberty,  is  the  true  negation. 


GENERAL   EXPLANATION   OF   RIGHTS.  35 

property,  there  is  a  seeming  invasion  of  his  rights  as  a  land- 
owner ;  yet  a  satisfactory  explanation  of  this,  reconciling  it 
with  the  general  right  of  property  to  the  soil,  will  be  given, 
when  we  consider  the  purposes  and  the  extent  of  the  right  of 
property,  in  another  place.  Another  seeming  collision  is  that 
between  the  right  of  speech  and  the  right  of  reputation. 
Here,  however,  the  conflict  is  only  apparent.  One  man  can 
no  more  blast  the  good  name  of  another,  and  plead  the  right 
of  speech  in  his  defence,  than  he  can  plead  the  right  of  con- 
tracting marriage  for  marrying  another  man's  wife.  The 
necessary  and  general  limit  in  nearly  all  cases  is  that  no  injury 
be  done  to  another  by  the  exercise  of  a  right.  I  say  in  nearly 
all  cases,  for  it  might  seem  that  a  man,  who,  in  self-defence, 
takes  away  the  life  of  a  robber,  does  an  injury  to  another. 
The  true  statement,  however,  seems  to  have  been  given 
already  :  he  does  no  injury  to  the  robber,  although  he  does 
harm  to  him,  for  he  acts  as  a  minister  of  justice. 

The  cases  where  righteous  state  laws  seem  to  come  into 
conflict  with  private  rights  will  come  up  when  we  treat  of  the 
state  (§  91).  It  seems  strange  that  the  state,  the  existence 
of  which  is  justified  by  its  vocation  to  protect  the  rights  of 
individuals,  should  by  law  encroach  on  and  violate  those  very 
rights,  as  it  seems  to  do  by  the  demand  of  military  service, 
by  taxation,  and  by  taking  property  for  a  public  road,  on 
paying  the  price,  even  against  the  owner's  will.  On  such 
cases  we  remark  at  present  only  (1)  that  many  laws,  which  are 
often  accounted  for  by  the  public  welfare,  are  intended  to 
enforce  rights  or  secure  obligations  between  individuals  ;  (2) 
that  the  state  has  rights  of  its  own  which  are  truly  such  ;  and 
(3)  that  the  state's  right  of  self-preservation  and  of  preserving 
private  rights  will  account  for  other,  especially  for  extraordi- 
nary, exercises  of  the  public  power. 

§  19- 

What  has  been  said  in  the  last  section  touching  collisions 

Limitations  of  °*"  rights  may  justify  some  miscellaneous  remarks 

r,shts-  grouped  together  on  the  subject  of  limitations 

of  rights.     Rights,  being  general  powers  of  man   arising  out 


36  POLITICAL   SCIENCE. 

of  his  nature,  may  be  limited  in  particular  cases,  as  (i)  by  the 
inabilities  or  deficiencies  of  individuals.  Thus  bodily  weak- 
ness, deficiency  of  a  limb,  illness,  make  the  exercise  of  certain 
rights  for  the  time  impossible.  (Comp.  §  13.)  (2).  The  loss 
of  mental  powers,  by  taking  a  person  out  of  the  category  of 
complete  men,  destroys  his  capacity  to  exercise  the  rights 
which  men  as  men  possess.  Thus  the  insane  person,  the 
drunkard,  for  the  time  being,  and  others,  may  be  rightfully 
prohibited  from  performing  certain  acts  which  convey  rights 
toothers.  (§  13,  u.  s.).  (3).  A  prior  act  limits  in  regard  to  cer- 
tain future  acts,  as  in  contract,  the  very  essence  of  which  is 
to  limit  the  power  of  will  of  the  contracting  party  in  a  certain 
respect  (§§  34,  35).  (4).  A  waiver  of  a  right,  which  may  be 
classed  with  contracts,  has  the  same  effect.  (5).  The  right 
of  property  does  not  mean  that  every  one  must  have  his  share 
in  the  property  or  the  landed  property  in  the  world.  (Comp. 
§  28).  (6).  The  right  of  labor  is  limited  by  the  want  of  an 
object  on  which  the  labor  may  be  expended.  (7).  Punish- 
ment is  necessarily  a  limitation  of  some  right  during  its  con- 
tinuance. (Comp.  §115).  (8).  A  right  may  be  indefinite  in 
some  respects  so  as  to  need  the  definition  of  law.  (9).  For- 
eigners are,  to  a  great  extent,  limited  in  the  present  state 
of  the  world,  in  regard  to  certain  rights,  especially  that 
of  holding  real  property.  How  far  the  disqualifications  of 
this  class  of  persons  are  right  will  be  considered  elsewhere. 
(10).  State  law,  as  was  just  said,  puts  limits  on  the  ownership 
of  property  by  taxation,  by  requiring  military  service  (§  19), 
and  on  the  more  vague  plea  of  the  public  welfare.    (Comp. 

§91-) 

§  20. 
Rights  may  be  said  to  be  almost  infinite  in  number,  and 
one  might  cast  ridicule  on  the  science  by  speak - 

Divisions  of  rights.     . 

ing  of  the  right  or  free  use  of  the  eyes,  the  nose, 
the  mouth,  the  arms,  etc.  Such  an  enumeration  might  go 
well  with  the  details  of  the  compositions  in  the  old  Germanic 
laws.      A  division  is  not  very  important,  but  perhaps  the  last 


GENERAL   EXPLANATION   OF   RIGHTS.  37 

one  might  be  found  in  the  principal  parts  and  relations  of  our 
nature.      I  suggest  the  following  division  : 

(a).  Rights  connected  with  the  physical  nature  of  man,  as 
the  right  to  life,  limb,  locomotion,  self-defence. 

(b).  Rights  growing  out  of  the  relations  of  man  to  the  ex- 
ternal world,  as  the  rights  of  labor  and  of  property. 

(c).  Rights  growing  out  of  the  relations  of  men  to  other 
men,  and  first  the  more  general  and  temporary  rights  of  con- 
tract and  association. 

{d).  Rights  growing  out  of  distinctions  of  sex  and  the  intro- 
duction of  new  beings  into  the  world — the  family  rights  as  an 
aggregate,  including  among  them  rather  than  under  them  the 
right  of  testamentary  disposition. 

(e).  The  social  rights  of  free  speech  and  of  other  means  of 
communication. 

(_/").   The  rights  of  reputation  and  of  exemption  from  insult. 

(g).  The  rights  of  conscience  and  of  opinion,  together  with 
that  of  open  religious  profession  and  worship. 

Another  division  would  be  into  those  rights  which  are  car- 
ried out  by  the  action  of  a  single  human  being,  and  those 
which  imply  a  concurrence  of  human  wills.  To  the  first  class 
belong  the  rights  of  life  and  limb,  of  labor  and  property,  of 
speech,  conscience,  and  worship.  To  the  second,  contract  and 
association,  together  with  marriage,  so  far  as  it  is  a  contract 
or  union.  But  the  family  rights  cannot  all  of  them  be  sub- 
jected to  this  division. 

The  terms  perfect  and  imperfect  rights  and  obligations,  for- 
merly quite  common  and  still  sometimes  used,  denoted  rights 
and  moral  claims  under  the  first  class,  obligations  and  duties 
under  the  other  :  that  is,  those  moral  requirements  were 
called  perfect  which  could  be  defined  with  precision  and 
therefore  enforced  by  law  ;  while  the  imperfect  were  indefinite, 
and  hence  incapable  of  being  the  subject-matter  of  law.  The 
terms  are  misleading,  and  may  with  advantage  be  laid  aside. 


21 


CHAPTER  II. 

PARTICULAR   RIGHTS. 

§  21. 

THE  right  of  an  individual  to  life,  means,  in  relation  to  an- 
Rights  of  life,  limb,   other,  that  no  one  shall  deprive  him  of  it.     It 
etc#  includes  the  right  of  continuing  one's  physical 

existence  by  all  the  means,  not  otherwise  immoral,  which  do 
not  invade  the  rights  of  others,  and  of  defending  it  when  it  is 
attacked.  If  there  be  any  rights  at  all,  this  must  be  one  of 
them,  for  life  is  that  essential  condition  without  which  no 
other  right  can  be  exercised.  Accordingly  usage  and  law  in 
all  nations  endeavor  to  protect  it.  Not  only  is  the  public 
power  in  well  organized  communities  clothed  with  the  office 
of  punishing  murder,  but  in  early,  immature  societies  this 
power  was  put  into  the  hands  of  the  nearest  of  kin.  Thus, 
among  the  Hebrews  the  right  of  blood-revenge  appears  as  an 
ancient  practice  brought  down  from  the  nomadic  life  of  the 
tribes.  The  goel,  or  avenger  of  blood  in  the  first  sense  of  the 
word,  was  the  redeemer  of  land,  which  by  law  could  not  be 
alienated  in  perpetuity  from  the  family  ;  then  the  next  of  kin, 
and  then,  as  such,  the  punisher  of  one  who  had  killed  his  rela- 
tive. To  prevent  the  unlimited  exercise  of  this  power,  cities 
of  refuge  were  established  to  which  the  man-slayer  could  flee, 
and,  if  found  guiltless  of  intentional  or  premeditated  murder, 
could  remain  there  in  security.  But  if  he  left  his  refuge,  the 
go'el  had  the  right  of  killing  him  (Num.  xxxv.).  This  usage 
was  common  in  the  time  of  David  (see  2  Sam.,  xiv.,  7,  11). 
Mahomet  found  and  allowed  it  among  the  Arabs,  but  recom- 
mended mercy.  It  prevails  still  among  them,  among  the 
Persians,  Abyssinians,  Druses,  Circassians,  the  Morlachs  of 
Croatia,  the  Montenegrins— the  two  last  nominally  Christians 


PARTICULAR   RIGHTS.  39 

— not  to  trace  the  practice  among  many  tribes  of  still  inferior 
civilization.  We  may  add  that  the  Greeks,  as  they  appear 
in  Homer,  had  blood-revenge,  and  that  there  is  a  trace  of  it 
among  the  Romans.  That  it  was  widely  extended  among  the 
ancient  Germans  is  certain  ;  yet  Tacitus  tells  us  of  the  weregild 
(life-price,  composition)  in  the  words  "  luitur  homicidium  certo 
armentorum  ac  pccorum  nutnero,  rccipitquc  satisf actionem 
universa  domns"  that  is,  the  whole  family  are  precluded,  on 
receiving  the  fine,  from  pursuing  revenge  further.  It  is  wor- 
thy of  notice  that  blood-revenge  continued  in  some  of  the 
German  territories,  as  in  Switzerland,  long  after  they  were 
Christianized.*  The  compositions  for  other  bodily  injuries 
caused  by  violence,  down  to  the  most  minute,  appear  in  all  the 
German  laws. 

This  practice  of  the  primeval  times  seems  to  have  grown 
out  of  the  feeling  that  retribution  for  so  fearful  a  thing  as  tak- 
ing life  was  necessary,  and  out  of  the  damage  done  by  the 
homicide  to  the  family  interests.  As  time  went  on  and  bitter 
feuds  arose  on  account  of  revenge  for  murder,  which  would 
naturally  often  fall  on  the  innocent  and  thus  call  for  new  re- 
venge, the  feeling  of  just  retribution  took  the  back-ground, 
and  family  interests  were  satisfied  by  composition.  Yet  the 
obligation  to  pursue  the  intentional  murderer  with  vengeance, 
expressed  in  some  laws  which  admit  of  no  compositions,  shows 
a  strong  moral  sense,  however  liable  it  might  be  to  go  astray. 
It  is  not  mere  blind  hatred,  but  was  connected  with  and  re- 
quired by  religion. 

The  right  to  life  is  one  that  cannot  be  waived,  because,  as 
we  have  already  said,  to  give  it  up  would  be  to  give  up  the 
possibility  of  exercising  all  rights.  If  given  up,  it  is  given  up 
forever  and  all  other  rights  with  it.  Whether  a  man  can  take 
his  own  life,  whether  he  can  expose  it  or  give  it  up  for  great 

*  See  E.  Osenbriiggen,  Alamannische  Strafrecht,  §§  17,  18.  For  the 
whole  subject,  compare  for  the  Hebrews,  Winer's  Realworterb,  voce 
Blutrache,  and  Saalschiitz,  Mos.  Recht.,  cap.  71  ;  for  the  Greeks, 
Schumann,  Gr.  Alt.,  i.,  470,  ii.,  6,  Nagelsbach,  Horner.  Theol.,  p.  249  ; 
for  the  Germans,  Waitz,  D.  Verfassungsgesch.,  ed.  2,  i.,  66  and  onw. 


40  POLITICAL   SCIENCE. 

ends  lying  outside  of  himself,  are  moral  questions  which  do 
not  touch  our  subject.  Of  the  first,  however,  we  may  say 
that  it  appears  to  be  the  highest  immorality  to  try  to  escape 
from  a  state  of  existence  which  is  full  of  obligations  and  re- 
sponsibilities, by  an  act  of  one's  own.  If  a  person  cannot 
waive  his  right  to  life  when  another  seeks  to  take  it,  how  can 
he  reach  the  same  point  by  a  free  act  of  his  own.  As  for  the 
other  questions,  we  need  only  say  that  the  closeness  of  the 
connection  between  the  individual  and  the  state,  or  between 
the  individual  and  other  natural  unions  within  the  state,  de- 
mand, according  to  the  law  of  benevolence  and  the  sentiments 
of  every  noble  soul,  a  sacrifice  of  one's  own  life.  As  for  ex- 
posing life,  we  have  to  do  it  even  for  the  sake  of  other  rights 
that  are  to  be  secured. 

Of  the  right  to  one's  limbs  or  members  and  to  the  use  of 
them,  nothing  need  be  said  but  that  their  integrity  is  neces- 
sary for  most  of  the  ends  which  are  placed  before  the  indi- 
vidual in  the  world. 

The  right  of  locomotion  is  equally  evident,  because  life,  in- 
tercourse, society — all  the  ends  contained  in  our  being,  imply 
that  a  man  cannot  fulfil  them  and  be  confined  to  one  spot. 
How  this  right  is  to  be  harmonized  with  the  rights  of  property 
will  presently  appear.  It  implies  freedom  of  movement  over 
the  earth — except  so  far  as  the  safety  of  nations  imposes  re- 
straints— the  liberty  of  the  seas,  the  right  of  emigration  and  of 
peaceful  settlement  in  unoccupied  land.  Yet  these  rights 
have  been  hardly  ever  recognized  in  the  history  of  the  world. 

The  right  of  self-defence  may  be  said  to  be  a  right  lying 
back  of  every  other :  it  is  the  right  of  using  force  for  self- 
protection  or  self-preservation.  The  more  internal  or  spirit- 
ual rights,  however,  do  not  admit  of  self-defence  in  the  same 
way  in  which  life  and  limb,  property,  the  family  rights,  and, 
it  may  be,  contract,  when  these  rights  are  interfered  with, 
may  call  for  the  use  of  force  in  their  vindication.  It  may  be 
that  free  speech,  free  worship,  the  right  of  reputation,  as  far 
is  their  exercise  is  concerned,  lie  outside  of  the  use  of  force. 
Insults  or  attacks  on  the  good  name  of  a  person  may  be  pun- 


PARTICULAR   RIGHTS.  41 

ished,  but  the  good  name  is  not  forcibly  defended.  The  force 
does  not  secure  it  nor  disprove  the  calumny.  In  regard  to 
these  rights,  then,  which  may  be  said  to  remain  as  long  as  the 
spiritual  nature  remains,  there  is  no  efficient  protection  to  a 
man  in  anything  he  can  do.  They  are  rights  which  rise  into 
importance  when  men  become  civilized,  and  increase  in  im- 
portance with  increase  of  refinement.  In  regard  to  the  other 
rights,  which  have  something  external  to  the  man  for  their 
objects,  as  property  or  special  relations  to  other  persons  or 
his  own  physical  existence,  they  need  the  power  and  involve 
the  right  of  resistance  to  attacks  because  one  successful  inva- 
sion can  destroy  the  exercise  of  the  right  forever. 

The  right  of  self-defence  is  limited  by  the  right  of  the 
person  who  makes  the  assault.  If  I  myself  begin  the  assault 
causelessly,  I  cannot  plead  self-defence  for  resisting  another 
who  defends  himself,  for  he  is  exercising  a  right.  The  only 
reason  for  repelling  such  violence  proceeding  from  an  injured 
party  is  that  the  sense  of  wrong  may  lead  him  to  go  beyond  the 
bound  of  just  self-protection — that,  for  instance,  he  may  take 
life  or  limb  on  very  slight  grounds.  This  shows  the  dangers 
attending  such  a  right,  and  the  impossibility  of  observing  just 
limits  under  the  sway  of  anger  and  fear.  Hence,  the  right  of 
self-defence  only  exists  when  nothing  besides  force  will  an- 
swer the  needs  of  the  moment  ;  and  we  see  here  occasion  for 
the  supervision  of  society  to  repel  not  only  invasions  of  rights 
by  violence,  but  also  to  help  the  individual  by  its  power,  so 
that  he  shall  feel  no  need  to  be  on  his  guard  and  in  a  state  of 
apprehension  against  attacks. 

§  22. 
The  word  property  comes  from  proprins ,  own,  peculiar,  and 
denotes  in  English,  as  proprictas  does  in  Latin, 

Right  of  property.  °  ....  .  , 

a  peculiar  or  essential  quality,  or  in  general  a 
quality,  the  peculiar  sense  of  a  word,  and  then  ownership,  or 
that  in  which  ownership  inheres.  It  is  in  the  same  way  that 
from  eigen,  Ger.  (Anglo-Sax.  agan,  Engl,  own),  come  eigen- 
schaft  =  property    or    quality,     eigenthum=property,     thing 


42  POLITICAL   SCIENCE. 

owned,  eigenheit= peculiarity.  In  Latin,  proprictas,  in  the 
sense  ownerships  thing  owned)  belongs  to  the  age  of  the  em- 
pire, and  proprietarius,  a  proprietary  or  (irregularly)  a  propri- 
etor, to  the  civil  law.  In  the  restricted  sense  of  the  word,  when 
used  of  the  relation  of  a  subject  of  rights  to  material  or  corpo- 
real things,  it  denotes  some  power  or  control  over  something 
external  to  a  man  or  a  body  of  men  which  excludes  the  power 
or  control  of  all  other  persons  or  communities. 

What  is  this  exclusive  power,  or,  in  other  words,  what  rela- 
tions of  the  external  world  to  a  human  being  can  be  embraced 
under  the  term  property  or  ownership  ?  The  stages  of  connec- 
tion with  a  person  through  which  property  may  pass  are 
acquisition,  retention  with  or  without  personal  use,  and  trans- 
fer. Ownership  and  use  may  be  transferred,  or  the  power  of 
transfer  or  that  of  use  may  be  limited.  It  will  thus  result  that 
one  or  more  persons  may  be  said  to  have  rights  in  regard  to 
the  same  physical  substance  by  means  of  which  they  limit 
each  the  other's  right,  while  each  has  a  right  partaking  of  the 
nature  of  property.  And  again,  there  may  be  property  held 
in  common,  (i).  In  the  first  rank  stand  full  ownership  with 
full  power  of  use  and  of  disposal.  (2).  The  owner  may  part,  by 
contract  or  otherwise,  with  the  use  of  a  thing,  while  remain- 
ing owner  of  the  thing.  Thus,  the  owner  of  a  horse,  by  lend- 
ing it  to  another,  shuts  himself  off  from  all  control  of  it  for  the 
time  contemplated  in  the  contract  ;  and  the  owner  of  a  house, 
b>'  givmg  a  lease  of  it  to  another,  excludes  himself,  it  may  be, 
from  the  power  even  of  entering  it.  If  he  sells  his  property, 
he  sells  it  subject  to  the  existing  use.  (3).  In  the  case  of  an 
indestructible  thing,  the  original  owner  may  part  for  any  length 
of  time,  and  even  for  all  time,  with  the  use.  (4).  There  may 
be  ownership  qualified  by  use  in  certain  respects,  as  in  the 
case  of  servitudes  on  land  and  houses.  (5).  There  may  be 
ownership  with  no  power  of  alienation,  and,  vice  versa,  power 
of  alienation  of  what  right  there  is  without  ownership.  The 
feudal  proprietor  could  not  part  with  his  land  without  the  con- 
sent of  his  seignior  who  enfeoffed  him  ;  and  his  heir  could  not 
succeed  him  for  the  most  part,  without  doing  homage,  and 


PARTICULAR   RIGHTS.  43 

paying  the  fine  called  relief.  This  was  a  recognition  of  the 
seignior's  ultimate  right  of  property,  which  could  never  become 
actual  except  by  the  crime  or  the  consent  of  the  vassal.  A 
transferable  lease  is  an  instance  of  the  power  of  transfer  with- 
out ownership.  (6).  Complete  ownership  and  power  of 
transfer  may  be  limited  by  a  law  preventing  landed  property 
from  coming  into  the  hands  of  foreign  settlers.  (7).  There 
may  be  ownership  where  the  owner  retains  the  use  of  a  thing, 
but  has  parted  with  the  control  of  it  by  making  it  a  security 
for  the  fulfilment  of  an  obligation,  as  in  mortgage  contracts, 
or  where  he  transfers  the  thing  to  another  while  retaining  the 
ownership,  as  in  pawns  and  pledges.  (8).  There  may  be 
common  property  in  an  indivisible  thing  and  in  an  undivided 
thing,  as  in  rights  of  common  use,  and  in  unsettled  estates. 
(9).  There  may  be  such  ownership  of  thoughts  put  into  a 
material  form  that  the  owner  himself,  or  another  by  his  consent, 
may  multiply  the  copies  of  that  form.  Now,  in  these  and  all 
similar  cases,  exclusive  ownership  in  the  absolute  sense  must 
be  supposed  as  the  starting-point  from  which  the  qualifications 
or  restrictions  of  the  ownership  proceed.  These  are  chiefly 
reducible  to  contract  or  the  act  of  human  will  limiting  itself; 
and  as  they  are  of  common  occurrence,  so  that  the  business 
of  human  life  could  not  be  carried  on  without  some  of  them, 
and  for  their  validity  imply  the  ownership  of  immovable  prop- 
erty, they  show  the  immense  importance  of  the  recognition 
of  the  ownership  of  such  property  for  the  affairs  of  the  world. 
But  our  concern  here  is  not  with  this  ;  it  is  rather  with  the 
use  of  the  word  property  or  oivnersliip.  Can  the  mortgager 
and  mortgagee  both,  the  lessor  and  lessee,  and  so  on,  be  said 
to  have  property  in  that  thing  to  which  they  sustain  these  dif- 
ferent relations.  If  a  right  to  the  use  of  a  material  object  can 
be  estimated  according  to  some  standard  of  value — coined 
money,  for  instance,  or  day's  work,  or  the  price  of  wheat  at  a 
certain  market — we  are  disposed  to  call  it  property  as  much 
as  the  money  for  which  it  is  transferred.  Especially  can  such 
things  be  called  the  property  of  the  user  of  them,  when,  like 
the  original  party,  he  himself  has  the  power  of  transferring  his 


44  POLITICAL   SCIENCE. 

right  in  them  to  another.  The  relations,  however,  which  each 
of  the  persons  interested  in  the  thing  sustain  towards  it  are 
such  that  they  do  not  have  exclusive  possession  of  the  thing 
considered  as  a  whole  ;  although  together  they  exclude  all 
other  persons  from  all  power  over  the  thing  in  question,  and 
so  together  have  an  absolute  right  of  property.* 

§  23. 
As  life,  growth,  health,  the  very  existence  of  the  human 
is  there  a  right  of  race>  depend  on  the  use,  consumption,  or  reten- 
property?  ^Qn  Qf  articies  belonging  to  the  physical  world, 

there  is  a  necessity  that  many  things  should  be  appropriated 
which  serve  for  food,  clothing,  or  shelter.  There  must  be  a 
right  of  property  in  this  sense,  that  it  is  right  for  some  one  or 
some  family  to  consume  or  dispose  of  commodities,  and  wrong 
for  others  to  interfere  with  the  power  of  doing  this.  All  the 
necessaries  for  the  life  and  comfort  of  man  are  obtained  by 
labor,  whether  they  be  simply  caught  or  gathered,  or  are  pro- 
duced by  the  help  of  the  earth,  or  of  the  natural  forces  in  con- 
nection with  instruments  used  in  aid  of  labor.  But  labor  is 
strictly  personal,  depending  rightfully  on  the  laborer's  choice, 
and  directed  by  his  choice  towards  the  procuring  of  a  particu- 
lar object.  If  the  object  belongs  to  no  one  already,  whenever 
by  labor  it  is  transported  to  a  spot  where  it  can  be  used  or 
brought  into  a  shape  fit  for  use,  and  so  has  acquired  an  in- 
creased value,  it  seems  to  be  naturally  just  that  it  should  belong 
to  the  laborer.  For,  by  fitting  a  thing  for  use  by  means  of 
his  labor,  he  has  come  into  a  closer  relation  with  the  thing 
made  or  produced  or  even  transported,  than  any  one  else. 
There  is  a  reason  in  that  fact  why  he  should  be.  the  proprietor 
of  that  thing.  Every  one  else  stands  in  a  neutral  attitude 
towards  the  thing,  and  all  in  the  same  attitude.  Either,  then, 
all  or  none  must  have  a  right  of  some  kind  to  the  thing,  which 
will  make  them  joint  owners  with  the  laborer.  It  is  plain  that 
such  a  relation  of  joint  ownership  of  all  to  a  thing  on  which 
labor  has  been  spent  by  one  would  destroy  all  motive  for 
*  Comp.  in  general,  Gaius,  Inst.,  ii.;  §  66-69  an^  onward. 


PARTICULAR   RIGHTS.  45 

labor,  and  prevent  labor  itself  from  being  put  forth  to  any- 
considerable  extent.  And  thus  we  reach  an  additional  con- 
sideration, that  as  the  necessity  of  labor  is  connected  with  all 
art,  all  comfort  and  upward  progress,  as  well  as  with  the  im- 
provement of  character,  with  forethought,  with  self-sacrifice 
for  the  benefit  of  a  family  and  the  like,  the  institution  of  prop- 
erty, which  mankind  have  fallen  into  almost  spontaneously 
and  without  reflection,  commends  itself  to  reason,  as  it  judges 
from  a  view  of  the  effects  of  the  institution  and  from  an  esti- 
mate of  the  evils  of  a  state  of  things  in  which  no  right  of  prop- 
erty should  be  recognized:  We  may  argue  also  from  the 
universality  of  property  in  some  shape  and  in  relation  to 
some  things,  from  laws  against  stealing  as  an  acknowledgment 
of  the  right,  and  from  the  sense  of  injury  when  one  is  deprived 
of  what  he  holds  to  be  his  own. 

§  24. 
Labor  and  occupation  of  that  which  is  without  an  owner 
how  does  prop-  are  the  two  primary  sources  of  property,  which 
erty begm?  are  f0uoweci  by  gift>  sale,  and  testamentary  dis- 

position. The  latter  we  shall  treat  of  under  family  rights. 
Labor  has  been  spoken  of  already.  Occupation  is  used  to 
denote  the  act  of  one  person,  or  of  more  than  one  acting  to- 
gether, in  getting  control  of  a  thing  which  has  no  owner,  for 
the  purposes  of  immediate  or  of  future  use.  Cases  of  occupa- 
tion mentioned  by  Roman  jurists  are  :  (1)  The  capture  of  wild 
animals  on  the  land,  in  the  sea,  or  in  the  air,  and  it  is  indif- 
ferent whether  they  ever  had  an  owner  or  not,  if  they  are,  at 
the  time  of  capture,  in  the  wild  state.  And  so,  if  they  escape 
from  the  captor,  his  ownership  ceases.  There  are,  as  Gaius 
says,  certain  animals  which  have  the  habit  of  going  away  and 
returning  to  their  owners'  premises,  such  as  doves,  bees,  and 
deer.  If  these  should  lose  the  habit,  it  would  be  equivalent 
to  a  resumption  of  the  wild  state,  and  whoever  found  them 
would  own  them.  (Gaius,  ii.,  66-68).  It  mattered  not  whether 
the  seizure  took  place  on  one's  own  or  on  another's  land  ; 
this,  according  to  Roman  law,  did  not  affect  the  ownership.    In 


46  POLITICAL   SCIE1SXE. 

later  times  law  in  Europe  has  restricted  the  right  of  capture 
on  the  grounds  of  another  ;  although  some  jurists  think  that 
even  then  ownership  may  find  place,  even  if  the  captor  may 
have  acted  unlawfully.  (2).  Treasure  trove  was  held  to  be 
long  to  the  finder  if  he  found  it  on  his  own  land  or  on  land 
without  an  owner  ;  but,  if  on  another's  or  on  public  land,  half 
went  to  him  and  half  to  the  proprietor  or  the  Jiscus.  (3).  As 
enemies  had  no  rights,  that  which  was  taken  from  them,  even 
from  unarmed  inhabitants  of  the  hostile  country,  went  to  the 
captor.  "Ba  quoque  qua  ex  Jwstibus  capiuntur  naturali  ra- 
tione  nostra  fiunt."  (Gaius,  ii.,  6£).  That  is,  according  to  the 
principles  of  justice,  a  nation  is  engaged  in  an  attempt  to  re- 
cover what  is  lawfully  its  own,  and  as  there  is  a  solidarity  of 
interests  between  the  citizen  and  the  state,  the  property  of 
each  must  answer  for  the  whole.  Otherwise  there  is  no 
"  natural  reason  "  in  the  transaction.  (4).  Property  forsaken 
by  its  owner,  without  the  intention  of  transferring  it  to  an- 
other, could  become  the  property  of  the  occupier.  This  rule 
would  apply  to  land  as  well  as  to  other  property.  The  rule 
was  carried  so  far  under  Valentinian,  Theodosius,  and  Arca- 
dius,  that  taxable  land  forsaken  and  left  unfilled  could  become 
the  property  of  a  new  cultivator  after  two  years  of  undisturbed 
cultivation.  The  reason  for  this  was  to  offer  a  motive  to  set- 
tlers on  deserted  land. 

By  an  extension  of  the  same  principle,  soil  added  to  the 
ground  of  a  proprietor  by  alluvion  becomes  his,  if  the  addition 
is  made  so  gradually  "  that  it  cannot  be  estimated  how  much 
is  added  in  each  moment  of  time."  But  if  a  stream  has  taken 
away  a  portion  of  one  man's  ground  and  added  it  to  that  of 
another,  this  portion  remains  the  property  of  the  former. 
(Gaius,  ii.,  70).  So,  if  an  island  is  formed  in  the  middle  of  a 
stream,  it  belongs  in  common  to  the  owners  on  the  opposite 
banks  ;  but  if  it  is  nearer  one  bank,  it  is  the  property  of  the 
owner  of  the  nearest  land.     (lb.,  71,  72). 

Another  principle  is  to  be  applied  when  a  man  has  put  his 
labor  into  something  belonging  to  another.  Thus  he  may 
place  a  house  or  something  immovable  on  another's  land,   or 


PARTICULAR   RIGHTS.  47 

plant  a  crop  there  which  will  in  time  be  removed,  or  employ 
his  labor  on  something  movable  which  belongs  to  another. 
In  the  two  former  cases  the  house  or  crop  is  an  accessory  to 
the  land,  and  if  he  had  occupied  another's  property  in  good 
faith  he  might  be.  entitled  to  have  his  expenses  paid.  In  the 
case  where  the  property  is  something  movable,  the  relative 
value  of  the  labor  and  the  material  seem  to  have  determined 
which  was  the  accessory  to  the  other.  Thus  that  which  some 
one  has  written  on  my  paper  or  parchment  is  mine,  says 
Gaius.even  if  it  be  written  in  golden  letters,  "  quia  Uteres  car- 
tulis  sivc  membranis  cedunt ;  "  while  in  the  case  of  a  picture 
painted  on  another  man's  wooden  tablet,  the  tablet  is  an  ac- 
cessory to  the  picture.  (lb.,  73-78).  For  this  difference 
Gaius  adds  "  vix  idonea  ratio  redditur."  In  pursuing  his 
inquiries  into  cases  of  property  he  mentions  a  number  where 
the  material  (as  grapes,  olives,  wheat-stalks,  gold,  silver,  wool) 
belongs  to  one  and  the  finished  product  to  another,  and  states 
that  there  was  a  difference  of  opinion  respecting  the  owner- 
ship— some  jurists,  as  Sabinus  and  Cassius,  assigning  it  to  the 
owner  of  the  material,  others  to  the  author  of  the  product, 
(lb. ,  79).  It  is  interesting  to  see  in  these  speculations  a  recog- 
nition of  the  rights  both  of  labor  and  of  occupancy,  however 
we  may  decide  in  regard  to  the  soundness  of  the  opinions 
expressed.* 

Akin  to  occupation,  which  implies  that  a  thing  is  without 
owner  or  known  owner,  is  possession — that  is,  the  mastery  or 
control  of  a  thing  which  is  without  known  or  visible  owner. 
Thus,  a  horse  must  have  had  some  owner  once,  but  by  stray- 
ing from  him  and  coming  into  my  hands  he  is  separated  from 
his  owner  and  brought  into  relation  to  me.  If  I  should  keep 
him  in  use  for  a  certain  length  of  time,  or  if  I  continued  to 
cultivate  a  piece  of  land  forsaken  by  a  private  owner  for  a 
time,  it  would  by  Roman  law  become  at  length  my  property.  , 
Thus  possessio  by  means  of  usucapio  passes  into  proprietas  or 
dominium.     The  principle  here  is  the  same  as  in  occupation, 

*Comp.  Hadley's  lectures,  pp.  164-168. 


4S  POLITICAL   SCIENCE. 

except  that  there  is  no  such  obvious  separation  of  the  prop- 
erty from  the  first  owner  as  to  render  it  absolutely  a  res  nul- 
lius.  Hence,  time  is  necessary  to  make  clear  that  it  is  actu- 
ally without  an  owner,  and  the  length  of  time  prescribed  is 
determined  by  the  lawgiver's  opinion  in  regard  to  the  amount 
of  evidence  so  afforded.  Our  right  by  prescription  and  limi- 
tation of  claim  to  property  in  another's  hands  seems  to  be  in 
part  accounted  for  by  the  inconveniences  to  society  arising 
from  the  disturbances  of  old  titles,  and  is  dictated  by  equity 
and  by  expediency  rather  than  by  strict  right.  (Comp.  §  92). 
Howistheri^htto  Gaius  accounts  for  occupatio  by  ratio  naturalis 
"«///«rto°be  e"  (Comp.  Inst.,  ii.,  §  66),  and  those  will  agree  with 
him  who  conceive  that  the  destiny  of  man  can- 
not be  fulfilled  without  the  existence  of  property  or  exclusive 
use  and  power  of  control  over  a  part  or  substance  of  the  ma- 
terial world.  But  some  attempt  to  explain  property  itself  on 
the  theory  that  originally  all  things  were  common  to  the  hu- 
man race,  but  by  compact  or  a  series  of  compacts  were  appro- 
priated first  to  a  tribe  or  community,  then  through  such  a 
society  to  a  smaller  one,  and  so  to  the  individual  at  the  end 
of  the  series.  Thus  not  only  all  land,  but  all  things  material, 
whether  inhering  in  the  land  or  separable  from  it,  would  be 
the  property  of  the  nation,  except  so  far  as  it  should  grant 
tacitly  or  openly  the  free  use  of  things  to  the  subject  inhabi- 
tants. This  theory  might  seem  at  first  as  harmless  as  the 
division  of  the  world  between  Zeus,  Poseidon  and  Hades,  for 
probably  no  man  who  digs  up  mud  clams  on  a  barren  shore 
ever  doubts  his  liberty  to  engage  in  his  occupation.  Certain- 
ly the  records  of  these  privileges  to  individuals  are  lost.  But 
the  theory  rests  on  a  fiction  and  leads  to  false  explanations. 
If  we  suppose  a  single  pair  of  human  beings,  the  sole  repre- 
sentatives of  their  race,  their  right  to  use  what  they  found  at 
hand  was  the  same,  and  resulting  from  the  same  nature  and 
needs  as  the  settler  on  a  desert  island  has  now.  If  the  world 
was  common,  it  was  so  in  the  sense  of  being  unappropriated, 
and  not  in  the  sense  of  being  held  in  joint  property.  We  speak 
of  a  common  table  where  all  arc  free  to  sit  down  and  eat,  al- 


PARTICULAR   RIGHTS.  49 

though  no  one  might  have  any  property  in  the  table  or  in  the 
food,  until  he  had  appropriated  a  portion  of  it  and  a  seat.  So 
it  was  with  mankind.  As  at  the  table,  each,  when  he  selected 
a  portion,  made  it  his  own,  so  it  was  with  the  earth  and  its 
contents  ;  each  takes  what  suffices  him,  but  cannot  carry  off 
and  put  by  for  himself  what  the  others  want.  The  necessities 
may  be  unequal,  but  they  are  individual. 

Here  it  may  be  remarked  that  the  lower  races,  which  get 
their  living  not  by  labor  on  the  soil,  but  by  labor  in  raising 
flocks  or  in  procuring  game  or  fish,  have  admitted  rights  of 
property  like  the  most  cultivated  peoples.  The  land  is  of  it- 
self to  them  of  no  value,  but  a  household  or  a  tribe  that  has 
first  occupied  a  pasture  feels  injured  by  being  driven  off;  an 
American  Indian  feels  that  he  has  the  right  of  ownership  in 
the  wigwam  and  the  garden  of  herbs,  and  a  fishing  station  is 
considered  as  belonging  to  one  tribe  or  clan,  so  that  if  others 
resort  there  it  is  an  invasion  of  their  rights.  Even  the  right  to 
roam  over  a  large  tract  of  land  in  quest  of  game  may  be  con- 
sidered to  belong  to  the  individuals  of  a  particular  community 
only  ;  and  property  in  a  res  nullius  is  held  to  pertain  to  the 
first  finder.  Thus  the  Greenlander,  as  Sir  J.  Lubbock  says, 
by  towing  driftwood  ashore  and  putting  a  stone  upon  it, 
shows  that  he  claims  it  as  private  property,  that  is,  by  his 
labor  in  bringing  it  ashore  he  has  come  into  a  relation  to  the 
thing  which  no  one  else  has,  and  which  no  one  else,  after  he 
has  declared  it  by  the  appropriate  form  or  symbol  to  be  his, 
can  have. 

$25. 
We  come  now  to  the  subject  of  property  in  land,  which  is 
How  is  private  attended  with  more  difficulty  in  its  explanation 

property  in  land  to  .  . 

be  explained?  than  property  in  materials  separable  from  the 

land.  It  is  unlike  most  products  in  that  it  cannot  be  produced 
or  increased  at  will,  but  is  the  source  and  basis  of  all  produc- 
tion. It  has  again  certain  general  relations  to  a  whole  com- 
munity which  nothing  has  that  can  be  separable  from  the  soil. 
Its  history  again  shows  that  individual  or  even  family  prop- 
4 


5<D  POLITICAL   SCIENCE. 

erty  in  the  soil  cannot  have  existed  in  all  the  conditions  of 
human  culture.  And  the  state  itself  must  have  a  certain  con- 
trol over  land  which  it  cannot  be  conceded  to  have  over  other 
articles  that  are  capable  of  being  held  in  ownership.  The 
points  here  most  deserving  of  notice  are  : 

(i).  That  no  appropriation  of  the  soil  can  be  so  entire  as 
to  obstruct  the  locomotion  and  intercourse  of  a  community. 
This  is  a  right  as  truly  deducible  from  the  nature  and  desti- 
nation of  men  as  society  itself;  nay,  if  private  property  did 
essentially  conflict  with  the  power  of  moving  from  place  to 
place,  this  would  be  a  reason  why  it  should  not  be  put  on  the 
catalogue  of  rights.  There  must  be  roads,  ferries  or  bridges, 
removals  of  impediments  to  travel,  which  no  combination  of 
private  owners  of  property  could  provide  for,  except  in  the 
most  advanced  society  and  where  the  power  of  association 
was  the  most  free.  But  the  obstacles  from  bad  roads  in  the 
way  of  advancement  would  prevent  altogether,  or  greatly  re- 
tard the  power  to  combine  for  the  improvements  of  communi- 
cation. Society  then  has  a  right  to  have  and  construct  the 
ways  of  intercourse.  When  this  is  done  by  the  nation  or 
government,  or  by  a  company  commissioned  by  the  govern- 
ment, it  is  simply  a  provision  for  the  rights  of  locomotion 
which  every  member  of  the  society  possesses. 

(2).  No  property  can  be  so  exclusive  that  the  natural  chan- 
nels of  intercourse  can  be  obstructed  by  proprietors  of  land 
through  or  between  whose  fields  a  navigable  or  boatable 
stream  runs.  This  depends  on  what  has  been  said  already. 
We  add  in  regard  to  the  relations  of  land  and  water  that  the 
use  of  a  stream  cannot  be  such  as  to  flood  the  lands  of  a  pro- 
prietor by  the  back-water,  unless  the  rights  of  the  injured  per- 
son are  provided  for  by  compensation.  (3).  The  state,  as 
acting  for  the  defence  and  security  of  all  the  inhabitants,  may 
make  such  use  of  the  land  of  individuals  as  it  judges  to  be 
necessary  for  that  purpose.  But  as  no  one  person  ought  to 
bear  more  than  his  share  of  the  burdens,  it  is  right  to  make 
to  the  owner  of  land  or  buildings  which  arc  thus  used  a  suita- 
ble compensation.     This  power  of  the  state  does  not  prove 


PARTICULAR    RIGHTS. 


5i 


that  it  was  the  original  owner  of  the  territory,  any  more  than 
the  taxing  power  proves  that  it  is  the  actual  owner  of  the 
whole  property.  This  explanation  of  dominium  eminens  from 
the  state's  original  proprietorship  is  indeed  favored  by  the 
feudal  theory  that  the  suzerain  was  the  highest  and  ultimate 
owner  of  the  soil,  and  by  the  Roman  doctrine  that  the  land  in 
the  provinces  belonged  to  the  emperor  or  to  the  people 
(Gaius,  ii.,  §  7)  ;  yet  even  under  the  feudal  system  there  was 
much  allodial  property  to  which  the  theory  did  not  apply,  and 
landed  property  in  Italy  was  held  by  a  different  right  from 
that  in  the  provinces.  Such  a  theory  may  be  true  when  terri- 
tory is  acquired  by  conquest,  but  in  the  end  it  will  not  be  car- 
ried out  into  its  consequences.  In  confiscations  and  escheats 
it  will  appear ;  but  apart  from  such  a  theory,  where  property 
is  forfeited  or  has  no  owner,  it  falls  to  the  state  not  as  receiv- 
ing back  its  own  but  as  representing  the  whole  body  of  in- 
habitants making  up  the  state. 

(4).  Notwithstanding  what  has  been  said,  the  history  of 
land  tenure  shows  that  ownership  of  land  by  individuals  or 
households  was  not  in  many  parts  of  the  world,  if  anywhere, 
the  original  form  of  ownership.  In  parts  of  the  world  at  this 
moment  a  community  system  prevails  ;  in  others,  traces  may 
be  discovered  of  the  same  kind  of  tenure,  and  in  others  still 
history  shows  that  it  once  existed.  In  general  it  may  be  laid 
down  that  in  a  hunting,  fishing,  or  nomadic  people  there  is 
no  motive  for  separate  property  in  land  unless  it  be  in  that 
which  is  connected  with  the  house,  the  homestead  proper,  or 
garden  ;  and  that  land  begins  to  be  appropriated  by  individu- 
als when  agriculture  is  the  prevailing  employment,  and  the 
house  is  built  for  permanence  and  at  considerable  cost  of 
labor.  As  the  tendency  is  at  a  certain  stage  of  culture  to  have 
better  houses  and  more  comforts,  local  attachments  necessa- 
rily become  greater.  Land  valueless  to  the  hunter  or  no- 
mad acquires  a  price  when  it  is  a  place  for  fixed  habitations 
and  fixed  crops,  when  by  labor  it  is  cleared  and  rendered 
easier  to  be  cultivated,  when  cities  and  villages  spring  up  in 
the  neighborhood  of  farms,  when   roads  are  laid   out,  when 


52  POLITICAL   SCIENCE. 

divisions  of  employments  become  more  marked.  But  even 
after  the  transition  from  nomadic  or  pastoral  life  to  a  life  on 
the  whole  agricultural,  some  of  the  old  habits  will  continue, 
and  tillage  is  at  first  rather  a  new  employment  added  to  the 
former  care  of  herds  and  flocks  than  a  wholly  distinct  branch 
of  industry.  Where  in  the  neighborhood  of  ploughed  land 
there  are  pastures  and  woodland,  the  motives  for  dividing  up 
these  portions  of  the  district  by  fence  will  be  small,  the  cattle, 
sheep,  or  hogs  can  feed  together,  and  as  there  will  be  a  sub- 
stantial equality  among  the  householders,  no  one  will  feel  that 
another  has  more  than  his  share.  The  community  feeling 
will  be  further  cherished  by  the  tie  of  blood-relationship,  un- 
til greater  intercourse  and  sale  of  lands  within  the  district  to 
persons  outside,  if  it  be  allowed,  impairs  this  bond  of  union. 
A  purely  agricultural  people,  homogeneous  and  of  common 
descent,  may  transmit  usages  founded  on  this  community  of 
land  from  age  to  age,  and  traces  of  its  early  existence  may  be 
discovered  where  one  would  not  expect  to  find  them. 

The  communal  systems  have  been  made  a  subject  of  great 
.    .   ,  •    research,  especially   since  G.    L.    von    Maurer 

Ancient  communi-  '  r  J 

ties-  published  his  Einlcitung  zur  Gcscli.  dcr  Mark- 

Hof-Dorf-u.  Stadt-Vcrfassung  in  1854,  and  his  Mark-Ver- 
fassung  in  1856.  Sir.  H.  S.  Maine  introduced  the  subject  to 
readers  of  English  in  his  "  Ancient  Law  "  ( 1 86 1 )  and  ' '  Village 
Communities"  (1871).  In  an  appendix  to  the  latter  work 
the  names  of  other  authors,  especially  of  Germans,  who  had 
treated  of  the  subject,  are  given.  Nasse's  work  on  the 
" Feldgemeinschaft"  of  the  middle  ages  (1869)  has  been 
translated  into  English,  and  that  plan  of  cultivating  fields  has 
been  shown  to  have  left  numerous  traces  of  itself  in  England 
down  to  the  present  day.  The  community  of  pasture  lands 
and  other  forms  of  common  property  were  brought  over  by 
the  first  settlers  of  the  English  colonies  of  America,  especially 
of  New  England  ;  but  to  what  extent  usage,  and  how  much 
circumstances  favorable  to  such  institutions,  contributed  to 
their  existence,  it  may  be  difficult  to  determine.  Prof.  Thu- 
dichum's  works,  especially  the   Gau-  u.  Mark-  Verfassiing  in 


PARTICULAR   RIGHTS.  53 

Deutschland  (i860),  die  Altdeutsche  Stadt  (1862),  and  for  the 
mark-courts  his  Rcchtgcschichte  d.  Wetter au  (1867),  present 
the  German  mark,  which  he  identifies  in  its  original  form  with 
the  hundred,  in  its  community  of  property  in  a  most  interest- 
ing light.  Mr.  George  Campbell's  essay  on  tenure  of  land  in 
India,  Mr.  Julius  Faucher's  on  the  same  in  Russia,  and  Mr. 
Morier's  on  agrarian  legislation  in  Prussia,  in  the  present  cen- 
tury, in  the  "  system  of  land  tenure"  published  by  the  Cobden 
Club  (1870),  are  valuable  for  the  comparison  of  tenures  in  dif- 
ferent lands,  and  the  communal  systems  prevailing  there. 
The  same  is  true  of  an  article  in  the  number  of  the  London 
Quarterly  for  July,  1871.  And  finally,  M.  Emile  de  Lavel- 
eye,  in  his  work  De  la  propric'te  et  de  ces  formes  primitives 
(Paris,  1874),  has  given  a  full  and  most  valuable  account  of 
communal  systems  over  the  world. 

On  account  of  the  great  importance  of  this  subject  for  the 
history  of  human  development  and  in  reference  to  the  theory 
of  the  right  to  property  in  land,  we  shall  make  a  brief  state- 
ment of  the  principal  facts  which  have  been  gathered  by  dif- 
ferent authors,  without  taking  care  to  give  credit  to  the  partic- 
ular sources  from  which  we  have  drawn.  The  forms  of  com- 
munal societies  may  be  divided,  as  M.  Laveleye  has  done,  into 
village  and  family  communities,  of  which  the  first  is  earlier, 
and  the  other  a  subdivision  and  breaking  up  of  the  village, 
clan,  or  brotherhood.  But  we  do  not  intend  to  separate  the 
communities  into  classes,  preferring  rather  to  give  the  facts  in 
a  miscellaneous  way  as  they  are  found  in  different  ages  and 
countries. 

The  Greek  and  Roman  writers  call  our  attention  to  a  system 
of  common  lands,  which  are  sometimes  spoken  of  as  subject  to 
frequent  redistribution.  Thus,  Strabo  (iii.,  152  C.)  speaks  of 
the  Dalmatians  as  dividing  their  acres  every  eighth  year, 
which  of  course  implies  community;  and  Diodorus  Siculus,  (v., 
34)  says  that  the  Vaccaei  of  Spain— a  people  living  near  the 
Durius  (Douro) — make  a  yearly  division  of  their  acres  used  for 
tillage,  that  they  hold  their  crops  in  common,  distributing  his 
portion  to  each,  and  that  they  punish  with   death  those  hus- 


54  POLITICAL    SCIENCE. 

bandmen  who  fraudulently  conceal  any  of  their  fruits.  This 
division  of  crops  must  mean  division  among  the  inhabitants 
of  small  cantons  or  communes.  So  Horace  speaks  of  the 
"  immetata  jugera  "  of  the  Getes,  of  their  annual  change  of 
fields  and  the  succession  of  cultivators.  Caesar  (De  B.  G.,  iv., 
i)  says  of  the  Suevi  that  they  have  no  private  and  separate 
lands,  and  are  not  allowed  to  stay  longer  than  one  year  in  one 
dwelling-place.  He  also  speaks  of  the  Germans  as  being 
without  any  fixed  amount  or  boundaries  of  land  held  in  own- 
ership, and  as  having  assignments  of  land  made  every  year  to 
their  clans  and  kindreds,  so  much  in  amount  and  in  such  a 
place  as  the  magistrates  and  princes  saw  fit.  For  this  annual 
change  of  land  Caesar  mentions  several  reasons,  as  if  it  were 
an  artificial  institution  and  not  handed  down  from  their  ances- 
tors. The  assignment  to  blood  relations,  who  might  in  the 
course  of  time  be  few  or  many  and  would  therefore  need 
smaller  or  larger  portions,  seems  to  involve  another  assign- 
ment within  the  district  to  the  several  householders  by  the 
head  men  of  the  kindred.  Tacitus,  in  a  passage  the  sense  of 
which  is  not  wholly  clear  (Germ.,  §  26),  says  that  "the  Ger- 
mans occupy  their  lands  in  turn  (?)  according  to  the  number 
of  the  cultivators,  and  divide  them  out  {secundum  diguationcm, 
i.  c. ,  apparently)  according  to  the  relative  standing  of  individ- 
uals. The  large  extent  of  the  open  fields  makes  this  division 
easier  than  it  otherwise  would  be.  They  change  their  arable 
land  (arva)  annually,  and  there  is  more  land  than  is  wanted." 
For  the  charges  of  inaccuracy  against  Tacitus  and  the  varying 
opinions  of  German  writers,  Thudichum's  Altdentsche  Staat, 
pp.  132-134,  may  be  compared.  We  accept  his  account  as 
verified  by  Caesar's,  and  by  the  community  systems  in  ancient 
times  already  mentioned,  and  see  nothing  incredible  even  in 
the  taking  down  and  putting  up  of  houses  such  as  they  had 
every  year ;  but  it  is  not  clear  whether,  when  Tacitus  wrote, 
the  almost  incredible  migration  from  one  part  of  the  territory 
of  a  tribe  to  another  was  thought  to  take  place  annually  as 
well  as  the  distribution  of  the  arva.  The  sense  seems  to  re- 
quire the   contrary.      And  if  this  be  so,  an  advance  towards 


PARTICULAR   RIGHTS.  55 

fixed  abodes  was  made  between  the  time  of  Caesar  and  that 
of  the  historian.  For  an  examination  of  the  subject  and  of 
this  passage,  Prof.  Stubbs's  Const.  Hist,  of  England,  vol.  i., 
chap.  2,  §§  10-13  may  be  consulted. 

Assuming  a  community  and  interchange  of  lands  at  first,  we 
come  down  to  a  time  when  the  arable  land  in  the  zent,  hun- 
dred, or  mark — the  feldmark — became  separate  property, 
which,  however,  was  cultivated  by  each  householder,  but  in 
concert  with  the  rest  and  according  to  common  laws  touching 
"the  alternation  between  fallow  and  plough-land."  Even  here, 
when  the  crops  were  gathered,  the  community  had  the  com- 
mon right  of  pasturage  on  the  stubble,  as  they  had  also  on  the 
fallow.  The  pastures,  waters,  and  wood  were  still  held  in 
common  ;  at  first  the  householders  or  members  of  the  mark 
could  cut  as  much  wood  as  they  pleased  ;  afterwards  the  trees 
to  be  felled  were  fixed  upon  by  the  officers  of  the  mark,  and 
the  wood  hewn  was  divided  by  lot.  The  meadows  also  from 
which  the  grass  was  cut  were  fenced  around,  and  before  the  hay 
harvest  were  divided  by  stakes  into  as  many  parts  as  there 
were  associates.  Thudichum  informs  us  (Gau-  und Mark-  Vcr- 
fass.)  that  in  Eberstadt,  in  the  Wetterau,  where  a  third  part 
of  the  meadow-land  still  pertained  to  the  community  until 
1830,  it  was  the  practice,  at  the  time  of  hay  harvest,  for  the 
drummer  to  arouse  the  community  early  in  the  morning  ; 
that  from  each  house  a  man  was  obliged  to  come  and  mow 
the  grass  land,  with  others  to  turn  and  spread  it,  and  that  when 
the  hay  was  made  it  was  put  into  as  many  heaps  as  there  were 
members  of  the  mark  and  widows,  and  then  divided  by  lot. 
In  many  places,  however,  one  or  two  acres  (inorgeii)  of  hay- 
land  were  granted  to  the  households  for  a  term  of  years,  for 
life,  or  for  an  indefinite  period  until  revocation  of  the  grant. 
In  some  parts  they  went  so  far  as  to  grant  the  right  of  inheri- 
tance in  these  portions. 

In  the  Scandinavian  countries,  as  long  as  the  clans  remained 
in  a  semi-nomadic  condition,  all  the  land  was  the  undivided 
common  property  of  the  clan.  But  when  the  cultivation  of 
the  soil  became  permanent,  separate   lots  were  assigned  to 


56  POLITICAL   SCIENCE. 

households,  while  the  rest  of  the  district,  including,  with  pas- 
ture and  woodland,  some  enclosed  land  still  undivided,  con- 
tinued to  be  common  property.  Traces  of  this  same  land- 
tenure  remain,  or  not  long  since  existed  in  the  Shetland 
Islands,  which  were  settled  by  Norwegians.* 

In  all  the  lands  of  the  Teutonic  and  Scandinavian  race 
traces  of  these  institutions  appear,  even  in  England,  where 
some  curious  remains  of  the  old  community  of  land  are  still  to 
be  found.  It  is  interesting  to  discover  that  the  early  settlers 
in  New  England  had  common  pastures  more  or  less,  and  other 
lands  undivided  at  the  first  settlement,  and  afterwards  held  in 
joint  property. 

Among  the  Slavonian  nations  also  community  of  lands 
seems  to  have  been  the  primeval  usage.  The  village  system 
in  Russia  was  "  the  joint  husbandry  of  a  whole  village.  The 
village,  not  the  family,  was  the  social  unit."f  Much  mere 
primeval  is  the  community  system  in  Servia,  Croatia,  and 
Austrian  Slavonia,  where  the  communities  not  only  hold  their 
land  in  common,  but  cultivate  it  also  by  the  combined  labor 
of  all  the  households,  among  whom  the  produce  is  divided 
yearly,  sometimes  according  to  their  supposed  wants,  some- 
times according  to  rules  which  give  fixed  shares  to  particular 
persons."  $ 

In  the  French  village  of  Les  Jault,  in  the  old  province  of 
Nivernais,  the  land,  buildings  and  cattle  were  a  few  years  ago 
held  in  common  ;  each  family  had  lodgings  in  the  common 
building — the  village  being  quite  small — and  meals  were  taken 
in  a  common  hall.  As  a  number  of  such  communities  for- 
merly existed  in  the  same  province,  they  were  probably  old 
Celtic  institutions.  §     Probably  community  of  land  was    the 

*  See  London  Quarterly  for  July,  1871,  where  the  relics  of  the  Eng- 
lish village  communities  are  noticed.  (Rev.  of  Sir  H.  S.  Maine's 
"Village  Communities." 

f  Fancher  in  System  of  Land  Tenures,  p.  302  ;  Laveleve,  u.  s.,  pp. 
O-49.  We  speak  again  of  the  Russian  Mir  in  part  3.  Com]).  Lave- 
leye,  u.  s.,  for  village  communities  in  Russia,  chaps.  2,  3,  and  for 
family  communities  among  the  southern  Slavonic  nations,  chap.  13. 

JLond.  Quart.,  u.  s.  §  Ibid. 


PARTICULAR    RIGHTS.  57 

early  rule  in  the  Celtic  race.  In  the  fifteenth  century  com- 
munal lands  were  extensively  seized  and  appropriated  by  the 
French  noblesse.  In  Ireland  the  first  cultivation  is  said  to 
have  proceeded  from  fraternities  of  some  kind  ;  and  the  strange 
custom  formerly  existing  there  of  making  a  fresh  division  of 
the  lands  in  a  district  on  the  decease  of  a  proprietor,  so  that 
his  heirs  shared  in  common  with  the  rest,  seems  to  point  to 
an  earlier  condition  of  things  when  all  had  equal  and  undivided 
shares.* 

The  village  communities  of  India  are  thus  described  by  Mr. 
George  Campbell :  f  "  It  is  true  that  in  early  times  the  land 
was  held  to  a  great  degree  in  common  for  grazing  purposes, 
private  property  being  in  cattle  and  not  in  land  ;  and  even  after 
it  has  been  distributed  for  the  purposes  of  cultivation,  the  cus- 
tom of  periodically  adjusting  inequalities  by  redistribution  has 
not  unfrequently  subsisted  to  a  much  later  time.  But  even  in 
this  latter  case  the  land  was  never  equally  distributed,  but 
was  only  reported  according  to  the  recognized  ancestral  shares, 
casual  inequalities  and  usurpations  being  redressed.  As  com- 
munities become  more  and  more  fixed  and  settled,  this  prac- 
tice of  redistribution  dies  out  ;  and  it  may  be  said  that  in 
modern  communities,  in  civilized  parts  of  the  country,  it  no 
longer  exists."  The  same  writer  speaks  of  the  Jats,  in  the 
Punjab  territory,  as  presenting  the  strongest  and  most  perfect 
village  forms.  "  A  Jat  village  community  consists  of  a  body 
of  freemen  of  one  caste,  and  who  traditionally  derive  from  a 
common  ancestor — clansmen,  in  fact.  Every  man  has  his  share, 
which  is  generally  in  the  Punjab  expressed  in  plough-lands. 
A  plough-land  is  not  a  uniform  quantity  of  land,  but  a  share 
in  a  particular  village.  There  may  be  sixty-four  or  a  hundred 
and  twenty-eight,  or  any  number  of  shares  ;  one  man  has  two 
ploughs,  another  a  plough  and  a  half,  another  half  a  plough, 
and  each  holds  land  representing  his  share,"  etc. 

We  add  one  or  two  facts  in  regard  to  the  tenure  of  land  in 

*Comp.  Sir  H.  S.  Maine's  Early  Hist,  of  Inst.,  lect.  iv. 
f  Systems  of  Land  Tenure,  p.  149-229. 


58  POLITICAL   SCIENCE. 

other  races  of  inferior  civilization.  The  Baskhir  settlers  on 
the  eastern  slopes  of  the  Ural,  descended  from  Tartar  nomads, 
follow  for  half  of  the  year  a  pastoral  life,  each  village  keeping 
itself  within  a  certain  district.  During  the  other  half-year 
they  remain  in  their  several  villages,  where  the  house  and 
garden  are  private  property  ;  but  the  plough-  and  grass-lands, 
although  parcelled  out  to  households,  show  their  original  con- 
dition as  common  land  by  the  fact  that  the  heads  of  the  vil- 
lages assign  new  plots  to  new  families  from  the  village  reserve, 
and  take  away  from  households  lands  on  which  for  several 
years  they  have  raised  no  crop.* 

In  the  island  of  Java  the  system  of  common  property  must 
once  have  been  universal,  although  now  the  Mahometan  the- 
ory of  the  sovereign's  ultimate  property  in  the  lands  and  even 
private  property  of  individuals  have  come  in  to  obliterate  the 
old  usage,  and  in  some  districts  to  root  it  out.  The  village 
community  there  pays  the  imposts  as  a  body,  it  has  common 
pasture-lands,  and  a  right  to  a  part  of  the  wood-land  and 
others  unoccupied.  The  rice-lands  are  divided  up  among  the 
inhabitants  of  the  village  annually  or  every  two  or  three 
years.  "  Yet,  as  in  the  Russian  village,  the  houses  with  ad- 
joining gardens  are  held  to  be  private  property."! 

C.  Sartorius  says  of  the  Indians  of  Mexico;}:  that  "most 
of  them  have  communal  property,  landed  possessions,  but 
cannot  be  induced  to  divide  their  lands,  which  is  very  hurtful 
to  the  cultivation  of  them.  Only  a  house-plot  and  a  garden 
pass  down  by  inheritance  ;  the  lands  belong  to  the  village,  and 
are  annually  used  without  rent.  A  portion  of  land  is  culti- 
vated in  common,  and  the  returns  are  used  for  the  expenses 
of  the  village  or  community."  And  again,  "  the  villages  or 
towns  which  possessed  territory  of  their  own  either  leased 
them  to  inhabitants  of  the  place  to  go  down  to  their  heirs, 
or  left  the  common  lands    undivided  in  such  sort   that   the 

*  Lond.  Quart.,  u.  s.,  partly  in  the  reviewer's  words, 
t  Laveleye,  u.  s.,  p.  49  et  seq.,  where  much  more  on  this  point 
may  be  found. 

I  Mexico  u.  die  Mexicaner,  Darmstadt,  1859,  cited  by  Thudichum. 


PARTICULAR    RIGHTS.  59 

meadows  remained  free  tor  common  use,  while  the  plough- 
land  was  annually  divided  among  the  residents.  To  prevent 
all  claims  by  prescription,  the  use  of  the  plough-lands  was 
given  to  different  tillers  from  time  to  time,  and  the  expenses, 
such  as  for  hedges,  ditches,  acqueducts,  were  borne  by  the 
communities." 

Whether  all  the  earliest  groups  of  people  who  held  prop- 
erty in  common  derived  this  institution  from  primeval  times, 
or  adopted  it  as  a  positive  and  artificial  improvement  on  ear- 
lier customs,  we  cannot  affirm  with  certainty.  The  tenure  of 
land  at  Sparta,  after  the  Dorian  conquest,  is  imputed  to  posi- 
tive law,  but  whether  this  was  so  or  not,  it  seems  to  point 
back  to  village  communities  of  an  earlier  period.  Another 
point  of  interest  is  the  comparative  antiquity  of  the  different 
kinds  of  communities.  The  progress  of  such  associations,  ac- 
cording to  Sir  H.  S.  Maine,  has  the  Hindoo  joint  family,  the 
house  community  of  the  Southern  Slavonians,  and  the  true 
village  communities  of  Russia  and  India  for  its  types.  The 
joint  families,  united  "  in  food,  worship,  and  estate,  are  con- 
stantly engaged  in  the  cultivation  of  land,  and  dealing  in  its 
produce  according  to  the  modes  of  enjoyment  of  an  undivided 
family,"  yet  they  are  only  accidentally  connected  with  the 
land  ;  it  is  not  land  but  consanguinity  that  holds  them  to- 
gether, "  and  there  is  no  reason  why  they  should  not  occupy 
themselves,  as  indeed  they  frequently  do,  with  trade  or  with 
the  practice  of  a  handicraft."  The  house  communities,  known 
to  the  Slavonians  themselves  by  words  signifying  an  associa- 
tion, consist  of  descendants  of  one  ancestor,  in  number  from  ten 
to  sixty,  under  the  government  of  the  family  chief  (or  gospodar), 
who  has  extensive  powers,  and  is  chosen  by  the  community 
itself.  When  there  is  need  of  a  new  choice,  the  successor  is 
not  always  the  eldest.  The  members  of  the  communities  live 
in  little  villages,  the  lands  are  held  in  common,  they  eat  at 
common  tables,  but  have  separate  houses  for  the  different 
families  of  married  people  and  their  children.  When  a  family 
becomes  too  large,  it  divides  itself  into  two  (Laveleye,  u.  s., 
ch.  xiii.).     These  house-communities  Sir  H.  S.  Maine  thinks 


60  POLITICAL   SCIENCE. 

(u.  s.,  p.  80)  to  be  expansions  of  the  Hindoo  joint  family 
settled  for  ages  on  the  land.  "  All  the  chief  characteristics  of 
the  Hindoo  institution  are  here — the  common  house,  the  com- 
mon table,  which  in  theory  are  always  the  centre  of  Hindoo 
family  life  ;  the  collective  enjoyment  of  property,  and  its  ad- 
ministration by  an  elected  manager.  The  community  is  a 
community  of  kinsmen  ;  but  though  the  common  ancestry  is 
probably  to  a  great  extent  real,"  strangers  may  be  absorbed 
from  outside.  But  "  the  land  tends  to  become  the  true  basis 
of  the  group  ;  and  it  remains  common  property  while  private 
ownership  is  allowed  to  show  itself  in  movables  and  cattle." 

"  In  the  true  village  community  the  common  dwelling  and 
common  table  disappear,"  giving  place  to  a  collection  of  sep- 
arate dwellings.  "The  arable  lands  have  been  divided  be- 
tween the  various  households  ;  the  pasture-lands  have  been 
partially  divided  ;  only  the  waste  remains  in  common."  In 
comparing  the  two  best  known  types  of  village  communities, 
the  Russian  and  the  Indian,  we  may  be  led  to  believe  that 
the  traces  of  the  ancient  mode  of  life  "  are  faint  just  in  propor- 
tion to  the  decay  of  the  theory  of  actual  kinship  among  the 
villagers."     (Early  hist,  of  inst.,  78-81.) 

$26. 

Assuming  it  to  be  made  out  that  there  was  little  or  no  in- 
Common  proper-   dividual  property  in  the  earliest  human  societies, 

ty  in  land  still  prop-  . 

erty.  we  do  not  reach  the  conclusion  that  the  land  was 

thought  to  belong  to  nobody,  or  that  there  was  no  conception 
of  property  ;  on  the  contrary,  the  communities  had  as  clear 
an  idea  of  their  rights  over  against  other  communities  as  the 
shareholders  in  a  railroad  or  cotton  factory  now  have  of 
theirs  in  things  which  are  absolutely  indivisible.  The  com- 
munists do  not  contend  for  the  abolition  of  property,  but  for 
the  abolition  of  private  property.  There  would  be,  if  they 
could  carry  out  their  system,  immense  numbers  of  bodies  for 
whose  existence  the  recognition  of  property  in  the  communal 
form  would  be  necessary.     They  would  change  the  face  of 


PARTICULAR   RIGHTS.  6l 

society,  but    could    not   change  the    conception   of  a    right 
belonging  to  human  nature  in  all  its  forms,  at  all  its  stages. 

The  exclusiveness  belonging  to  private  property  must  once 
have  inhered  in  communal  property  also.  As  all  the  mem- 
bers of  the  communities  originally  were  blood-relatives,  no 
other  person  could  enter  into  the  district  as  a  settler  without 
their  permission.  Together  they  had  the  same  relation  to 
their  premises  that  a  private  person  has  now  to  his.  This  is 
shown  by  the  remarkable  forty-fifth  chapter  of  the  Salic  law, 
"  de  migrantibus,"  as  the  title  is  in  the  older  manuscripts. 
According  to  this  law,  if  a  person  comes  into  a  village  with  the 
consent  of  one  or  more  of  the  inhabitants,  while  only  one 
makes  objection  he  shall  not  be  admitted,  and  the  objector 
in  the  presence  of  witnesses  may  warn  him  to  depart  within 
ten  nights.  Then  there  are  further  police  provisions  against 
him  if  he  stays,  rising  to  a  fine  of  thirty  solidi.  But  if  he 
comes  in  and  stays  twelve  months  without  being  summoned 
by  any  one  to  quit,  he  may  securely  remain  like  the  rest. 
Thus  he  becomes  by  tacit  consent  one  of  the  "  neighbors  " 
(vicini).* 

$27. 
It  is  important,  before  we  finish  the  subject  of  property,  to 
The  right  of  prop-   n°tice  the  distinction  between  the  right  and  the 
poSySeds°sioSnn0of  SS  ownership  of  property.     A  person  may  have  the 
right  of  acquiring,  retaining  or  alienating  prop- 
erty, without  actually  owning  any  article  of  property,  just  as 
he  may  have  the  right  of  labor  without  being  able  to  find  any 
one  willing  to  employ  him,  or  the  right  of  contract  when 
no  one  wants  to  make  a  bargain  with  him,  or  the  right  of 
entering  into  the  marriage  state  although  no   woman  wants 
him  for  a  husband,  or  the  right  of  reputation  when  he  has  a 
bad  reputation.      It  really  seems  almost  foolish  to  make  this 
remark,  and  it  would  be,  were  there  not  a  feeling  that  society 
is  to  take  care  of  every  one  of  its  members,  and  that  the  land 
of  a  country  never  properly  belongs  to  the  private  person,  but 

*  This  law,  however,  is  variously  interpreted. 


62  POLITICAL   SCIENCE. 

to  the  country,  which  can  redistribute  the  lands  at  its  pleas- 
ure. We  may  be  sure  that  the  associates  in  the  mark  would 
never  have  admitted  a  right  on  the  part  of  all  the  other  marks 
of  the  tribe  or  kingdom  to  send  their  poor  members  into  its 
borders  as  settlers.  The  communistic  ideas  that  lie  at  the 
bottom  of  this  claim  may  be  considered  in  their  political  as- 
pect hereafter.  Here  we  remark  that  property  in  land,  how- 
ever acquired  when  land  had  no  value,  becomes  valuable  by 
the  labors  of  the  cultivator  or  other  settler  in  clearing,  fencing, 
helping  to  make  roads,  draining  swamps,  and  the  like,  so  that 
the  expenses  on  some  lands  within  a  moderate  period  of  years 
may  have  amounted  to  more  than  the  present  money  price. 
The  land,  then,  is  an  instrument  of  production  like  a  plough 
or  a  spade  on  which  labor  has  been  spent,  besides  having  a 
tendency  to  wear  out  in  its  producing  qualities,  and  needing 
to  be  kept  up  by  fertilizers.  As  it  agrees  thus  with  many 
articles  of  movable  property  in  a  part  of  the  sources  of  its 
value,  it  cannot  be  separated  wholly  or  principally  from  them 
so  as  to  constitute  a  class  by  itself. 

§28. 
The  obligation  correlative  to  the  right  of  property  is  simply 
Obligation  correi-   to  respect  the  right,  to  leave  it  undisturbed.  The 
a.ive  to  this  right.      crimes  by  which  the  obligation  isviolated  are 

theft,  robbery,  and  fraud,  under  which  latter  term  may  be  in- 
cluded numberless  commercial  crimes  which  multiply  in  civil- 
ized countries  with  the  multiplying  forms  of  business. 

$29. 
Property  may  be  given  away,  exchanged,  consumed — in 
The  right  to  use  short,  may  lose  its  connection    with  a   person 
property.  more   easily   than   this  connection  was   formed. 

The  question,  however,  may  be  asked,  whether  there  is  any 
right  of  testamentary  disposition,  that  is,  any  right  of  a  per- 
son to  determine  to  whom  his  estate  shall  go  after  his  death  ; 
or,  if  there  be  such  a  right,  whether  it  is  absolute  and  unre- 
stricted.    This  subject,  however,  will  be  deferred,  in  the  pres- 


PARTICULAR   RIGHTS.  6$ 

ent  essay,  until  we  reach  the  family  rights,  for  the  reason  that 
the  head  of  a  family  is  no  longer  a  simple  individual,  but  sus- 
tains also  obligations  to  the  family  union  of  which  he  is  a 
member. 

We  close  what  we  have  to  say  of  property  in  land  with  a 
brief  examination  of  two  modern  theories  which  can  here  best 
find  a  place. 

Mr.  Herbert  Spencer  has  propounded  in  his  Social  Statics 
Theory  of  Herbert  (part  "•  >  ch-  9)  a  theory  of  "  the  right  to  the  use 
Spencer.  Qf  ^Q  earth,"  which  deserves  examination.      It 

is  based  on  the  law  of  equal  freedom.  According  to  this  law 
equity  does  not  permit  property  in  land,  (that  is,  it  is  neces- 
sary to  add,  not  only  property  of  an  individual,  but  of  a  com- 
munity of  individuals,)  because  if  a  state  or  the  world  should 
be  parcelled  out  among  a  multitude  of  such  communities,  the 
argument  would  be  equally  valid.  The  argument  is  that,  if 
one  portion  of  the  earth's  surface  becomes  the  possession  of 
an  individual  in  exclusive  right,  other  portions  maybe  so  held, 
and  eventually  the  whole  of  the  earth's  surface  may  belong  to 
a  single  individual.  Hence,  all  others  can  exist  on  the  earth 
by  sufferance  only  and  be  equitably  expelled  from  the  earth 
altogether.  Thus  the  assumption  that  land  can  be  held  as 
property,  by  the  consequences  which  it  involves,  renders  nec- 
essary an  infringement  of  the  law  of  equal  freedom.  "  For 
men  who  cannot  live  and  move  and  have  their  being  without 
the  leave  of  others  cannot  be  equally  free  with  those  others." 

(§2). 

And  if  one  should  say  that  his  title  to  his  land  is  just,  be- 
cause it  is  obtained  from  another  by  just  title,  by  payment  of 
money  or  by  inheritance  depending  on  original  purchase,  we 
come  back  universally  to  a  title  derived  from  force  or  some 
kind  of  wrong  or  interference  with  freedom.  "  Any  flaw  in 
the  original  parchment,  even  though  the  property  should  have 
had  a  score  of  intermediate  owners,  quashes  the  present 
owner's    right."     Whether   it    may    be    expedient    to    admit 


64  POLITICAL   SCIENCE. 

claims  of  a  certain  standing  is  not  the  point.  We  have  simply 
to  inquire  what  is  the  verdict  given  by  pure  equity  in  the 
matter.  And  this  verdict  enjoins  a  protest  against  every  exist- 
ing pretension  to  the  individual  possession  of  the  soil,  and 
dictates  the  assertion  that  the  right  of  mankind  at  large  to  the 
earth's  surface  is  still  valid,  all  deeds  customs  and  laws  to  the 
contrary  notwithstanding.      (§  3). 

Indeed,  it  is  impossible,  according  to  Mr.  Spencer,  to  dis- 
cover any  mode  in  which  land  can  become  private  property. 
The  reclaiming  of  a  piece  of  land  from  its  original  wildness  is 
usually  thought  to  confer  a  valid  title  on  the  new  settler  who 
has  thus  cleared  his  farm.  But  Mr.  Spencer  dismisses  this 
claim  by  saying  that  if  the  land  belonged  to  all  men  before 
the  clearing  was  made  it  belongs  to  all  men  still,  just  as  an 
empty  house,  occupied,  repaired  and  made  comfortable  by  a 
stranger  who  supposed  it  to  be  without  an  owner,  could  not 
be  held  by  him  against  the  proprietor,  if  he  should  make  his 
appearance.  If  the  new  settler — the  squatter,  as  we  say — may 
have  given  the  soil  an  additional  worth,  he  may  have  a  claim 
to  this  extra  worth  imparted  by  his  labor;  "  and  although 
without  leave  he  may  have  busied  himself  in  bettering  what 
belonged  to  a  community,  the  community  will  duly  discharge 
the  claim.  But  admitting  this  is  quite  different  from  recogniz- 
ing a  right  to  the  land  itself."     (§  4). 

Nor  is  it  possible  to  distribute  land  equitably  to  different 
persons  so  that  it  should  become  their  exclusive  property. 
For  such  distribution  is  made  impossible  by  differences  of 
productiveness,  nearness  to  the  market,  climate,  and  the  like, 
as  well  as  by  the  fact  that  all  who  at  a  certain  time  receive  no 
allotments— all,  for  instance,  who  are  born  after  the  division, 
become  practically  serfs.  And  the  existence  of  such  a  class 
is  wholly  at  variance  with  the  law  of  freedom.      (§  5). 

It  is  not  fair  in  reply  to  these  arguments  to  say  that  the 
right  of  private  property  must  not  be  pushed  to  its  extreme 
limits.  For  ethical  truth  is  as  peremptory  and  exact  as  phys- 
ical truth.  Either  men  have  not  such  a  right,  or,  if  they  have, 
all  its  actual  or  possible  evil  consequences  must  be  allowed  to 


PARTICULAR   RIGHTS.  65 

have  their  course,  for  the  right  is  sacred.  (§  6).  But,  in  fact, 
nobody  believes  in  "  landlordism"  implicitly,  for  it  is  subject 
to  be  set  aside  by  convenience.  Land  is  taken  by  public  law 
for  canals,  railroads  and  turnpikes,  whether  the  owner  con- 
sents or  not,  whether  he  is  satisfied  with  his  compensation  or 
not.  And  acts  of  a  legislature  supersede  the  authority  of  title- 
deeds,  interfere  with  private  rights  by  requiring  the  sale  of 
encumbered  estates,  and  put  an  end  thus  even  to  legal  con- 
tracts concerning  landed  property  between  man  and  man. 

(§7)- 

Such  a  doctrine  as  Mr.  Spencer  advocates  is,  he  contends, 
consistent  with  the  highest  civilization,  and  is  wide  apart  from 
communism.  If  it  were  reduced  to  practice,  "  separate  own- 
ership would  merge  in  the  joint  stock  ownership  of  the  pub- 
lic." "  Instead  of  leasing  his  acres  from  an  isolated  proprie- 
tor, the  farmer  would  lease  them  from  the  nation."  "  Tenancy 
would  be  the  only  land  tenure."  A  state  of  things  so  ordered 
would  be  in  perfect  harmony  with  the  moral  law.  Under  it 
all  would  be  equally  landlords,  all  men  would  be  alike  free  to 
become  tenants.  On  such  a  system  the  earth  might  be  en- 
closed, occupied,  and  cultivated  in  entire  subordination  to  the 
law  of  equal  freedom.    (§8). 

Mr.  Spencer  seems  to  regard  this  breaking-up  of  private 
property  in  lands  as  the  ultimate  goal  towards  which  society 
should  move  forward.  Great  difficulties,  he  admits,  must 
attend  the  resumption  by  mankind  at  large  of  their  rights  to 
the  soil.  The  question  of  complication  is  a  difficult  one,  the 
more  so  because  most  landlords  or  their  ancestors  have  hon- 
estly given  equivalents  for  their  estates.  "  But  with  this 
perplexity  and  our  extrication  from  it,  abstract  morality  has 
no  concern.  Men,  having  got  themselves  into  the  dilemma 
by  disobedience,  must  get  out  of  it  as  well  as  they  can,  and 
with  as  little  injury  to  the  landed  class  as  may  be."  But  it 
must  be  remembered  that  others  besides  the  landed  class  are 
to  be  considered,  and  "  the  injustice  thus  inflicted  on  the  mass 
of  mankind  is  an  injustice  of  the  gravest  nature.  By  and  by 
it  may  be  perceived  that  to  deprive  others  of  their  rights  to 
5 


66  POLITICAL   SCIENCE. 

the  use  of  the  earth  is  to  commit  a  crime  inferior  only  in 
wickedness  to  the  crime  of  taking  away  their  lives  or  personal 
liberties.     (§  9). 

"  Briefly  reviewing  the  argument,  we  see  that  the  right  of 
each  man  to  the  use  of  the  earth,  limited  only  by  the  like 
rights  of  his  fellow-men,  is  immediately  deducible  from  the 
law  of  equal  freedom  ;  we  see  that  the  maintenance  of  this 
right  necessarily  forbids  private  property  in  land.  On  exam- 
ination all  existing  titles  to  such  property  turn  out  to  be  in- 
valid, those  founded  on  reclamation  inclusive.  It  appears 
that  not  even  an  equal  apportionment  of  the  earth  among 
its  inhabitants  could  generate  a  legitimate  proprietorship. 
We  find  that,  if  pushed  to  its  ultimate  consequences,  a  claim 
to  exclusive  possession  of  the  soil  involves  aland-owning  des- 
potism. We  further  find  that  such  a  claim  is  constantly  de- 
nied by  the  enactments  of  our  legislature.  And  we  find, 
lastly,  that  the  theory  of  the  co-heirship  of  all  men  to  the  soil 
is  consistent  with  the  highest  civilization,  and  that,  however 
difficult  it  may  be  to  embody  that  theory  in  fact,  equity 
sternly  commands  it  to  be  done." 

On  this  theory  I  remark,  first,  that  it  is  true  that  the  right 
of  property  in  land  can  never  be  so  strictly  interpreted  as  to 
prevent  a  community  from  having  certain  uses  of  soil  that  is 
not  theirs.  The  rights  of  locomotion  are  not  extinguished  by 
private  property  ;  there  must  be  roads,  canals,  bridges,  fer- 
ries, with  the  proper  access  to  them.  This  has  been  suffi- 
ciently discussed  in  another  connection,  and  we  refer  to  what 
is  there  said  as  an  attempt  to  reconcile  the  rights  of  the  many 
to  do  that  which  is  essential  to  human  beings  with  the  right 
of  the  one  to  hold  property  which  is  contiguous  to  a  ferry  or 
bridge,  or  contains  the  best  path  for  a  public  canal  or  rail- 
road. 

2.  We  cannot  confine  Mr.  Spencer's  law  of  equal  freedom 
within  any  one  division  or  separate  nation  of  the  human  race. 
If  all  men  are  owners  of  all  the  earth,  an  over-populated  state 
must  have  the  right  to  demand  from  one  less  densely  popu- 
lated a  part  of  its  soil  for  emigrants,  and  on  refusal  to  comply 


PARTICULAR   RIGHTS.  67 

with  this  right  must  have  the  same  right  of  recourse  to  vio- 
lence as  when  any  other  right  is  violated. 

3.  The  principle  of  Mr.  Spencer  must  apply  not  only  to 
ground  that  can  be  used  for  agricultural  purposes,  but  for  all 
other  kinds  of  soil,  such  as  that  which  is  used  for  the  sites  of 
buildings,  which  constitutes  a  very  large  part  of  the  capital  of 
a  nation,  that  out  of  which  stone  is  quarried,  quarries  and 
mines  themselves,  all  places  fit  for  docks,  wharves,  and  the  like. 

4.  The  problem  of  dividing  up  would  be  increased,  if  we 
should  take  into  account  the  improvements  on  land,  and  the 
new  claims  of  those  who  are  continually  growing  into  the  ca- 
pacity to  have  the  full  use  of  their  freedom. 

5.  These  remarks  under  the  three  last  heads  show  that 
practically  the  doctrine  of  Mr.  Spencer  is  worthless  on  ac- 
count of  the  difficulty  of  application,  but  not  that  it  is  false  in 
a  moral  point  of  view.  But  the  law  of  equal  freedom  does 
not  prohibit  private  property  in  land  any  more  than  it  pro- 
hibits any  other  kind  of  private  property.  Equal  freedom,  as 
far  as  property  is  concerned,  does  not  imply  that  a  man  must 
possess  land  or  anything  else,  nor  that  all  must  have  equal 
advantages  for  getting  forward  in  the  world,  which  family 
connections  and  other  causes  make  impossible.  So  long  as 
family  and  acknowledged  kindred  exist,  some  must  have  more 
advantages  than  others.  If  a  community  system  should  take 
their  place,  which  God  forbid,  it  were  better  that  the  commu- 
nities should  be  small  and  self-governing  than  that  the  state 
should  form  one  vast  community. 

6.  The  problems  that  it  would  then  fall  to  the  state  to  solve, 
which  Mr.  Spencer  admits  to  be  difficult,  and  only  part  of 
which  he  has  noticed,  would  be  far  beyond  anything  which 
now  calls  for  state  action,  and  would  require  an  amount  of 
force  on  private  will,  an  array  of  officials  to  do  what  private 
persons  do  now,  which  would  be  practical  tyranny. 

7.  Whether  any  limitations  on  the  amount  of  land  in  the 
hands  of  a  single  person  or  family,  and  if  so,  what  limitations 
are  just  or  are  demanded  by  the  welfare  of  society,  may  be 
sonsichred  in  another  place.     That  some  kind  of  control  over 


68  POLITICAL   SCIENCE. 

the  engrossing  of  property,  especially  in  land,  maybe  defended 
by  specious  arguments  we  admit,  and  that  the  power  of  be- 
quest ought  to  be  subjected  to  certain  limits  we  believe. 
But  as  the  private  ownership  of  land  formed  an  era  in  the 
progress  of  society,  we  do  not  believe  that  society  will  ever 
go  backward  to  a  tenancy  system  more  objectionable  than 
community  of  goods. 

§  3i- 
Mr.  Spencer's  denial  of  individual  or  separate  property  in 
Buchez    on    the   ^anc^  *s  founded,  as  we  have  seen,  on  the   equal 
right  of  property.       right  of  all  to  freecjomj  which,  as  he  claims,  is 

inconsistent  with  any  person's  permanent  connection  with  the 
soil  and  with  the  accumulation  of  it  in  a  few  hands.  M. 
Buchez's  explanation  of  property  in  his  Politique  (i. ,  p.  327) 
derives  the  right  of  property  entirely  from  labor.  This  is  the 
only  title,  and  this,  as  creating  the  form  and  utility  of  prod- 
ucts, confers  a  complete  right  to  their  use  and  disposal.  A 
product  of  labor  is  the  only  thing  that  can  be  owned,  and  this 
by  right  independent  of  and  anterior  to  law.  It  is  remarka- 
ble, however,  that  purely  intellectual  productions,  which  are 
without  connection  with  the  material  form,  and  are  the  most 
complete  property  of  the  individual  as  fruits  of  his  own  labor, 
are  not  respected  in  any  age  or  country,  but  made  use  of  by 
all  without  scruple  ;  and  that  they  have  been,  when  put  into  a 
material  shape,  protected  by  copy  or  patent  right  only  in 
modern  times. 

Property,  then,  inheres  only  in  products.  A  much  wider 
range  belongs  to  objects  held  in  possession.  Such  are  por- 
tions of  the  earth,  and  whatever,  aside  from  products  or  the 
material  of  them,  is  acquired  by  inheritance,  by  gift,  by  ex- 
change, by  first  occupation  or  conquest.  All  things  held  by 
this  tenure  arc  subject  to  law  ;  the  right  of  the  individual  to 
them  is  derived  from  law,  and  thus  can  be  modified  by  law. 
They  are  not  property,  nor  held  by  the  right  of  property  in 
the  strict  sense  (p.  338  u.  s.). 

Still  another  limit  must  be  set  to  the  right  of  property. 


PARTICULAR   RIGHTS.  69 

The  form  alone,  given  by  labor,  is  property ;  the  material  is 
the  "  domain  of  all."  What  conclusion,  then,  is  to  be  drawn 
from  this  analysis  ?  It  is  that  "  the  right  of  possession  of  ma- 
terial belongs  to  an  individual  in  proportion  to  the  value  of 
the  form,  that  is,  of  the  quality  or  utility  he  has  put  into  "  or 
superadded  to  it.  If,  for  instance,  he  has  enriched  the  soil  by 
manures,  he  has  a  right  to  it  according  to  the  special  qualities 
imparted  by  him,  and  as  long  as  they  continue.  If,  again,  a 
mechanician  or  artist  should  make  a  very  perfect  work  out  of 
a  piece  of  metal,  in  such  sort  that  the  value  of  the  skill  should 
far  exceed  that  of  the  material,  and  the  form  should  so  far 
exceed  the  material  in  value  that  the  latter  might  be  said  in 
some  sort  to  vanish,  "then  the  work  might  pertain  entirely 
to  its  author." 

This  explanation  of  property  and  of  the  right  of  property  is 
deficient  and  unsatisfactory.  ¥  or  first,  if  labor  alone  confers 
a  title,  organized  society  can  have  no  more  property  in  the 
soil  than  belongs  to  the  individual,  since  the  soil  is  not  its 
product.  If  it  be  said  that  organized  society  must  have  some 
standing  and  dwelling-place,  and  therefore  a  certain  territory 
must  belong  to  it  to  the  exclusion  of  all  other  organized  socie- 
ties, the  same  may  be  said  of  the  individual.  And  here  we 
land  at  the  old  idea  of  occupation. 

2.  How  can  the  individual  acquire  property  in  material 
which  is  not  his  by  expending  labor  upon  it  ?  Who  gave 
him  the  right  to  take  a  portion  of  matter  which  is  not  his  own, 
and  cannot  be  his  own,  because  it  is  not  the  product  of  his 
labor  ?  Or,  if  he  is  addicted  to  pastoral  life,  what  right  has 
he  to  appropriate  sheep  or  cows  at  the  first,  or  to  claim  any 
right  in  his  flocks  which  have  multiplied  by  use  of  the  soil  and 
by  a  natural  propagation  which  is  not  even  the  result  of  his 
direct  labor  ?  Will  it  be  said  that  human  beings  must  live, 
and  in  order  that  they  may  live  must  have  control  over  the 
earth,  over  animals  and  natural  agents  ?  Very  true  ;  but  this 
necessity  depends  on  a  nature  and  destination  of  human  beings 
which  is  the  source  of  the  right  of  labor  as  well  as  of  other 
rights. 


yO  POLITICAL   SCIENCE. 

3.  But  in  matter  of  fact  for  all  the  higher  uses  of  labor,  for 
agriculture,  for  buildings,  for  ways  of  intercourse,  the  earth 
itself  is  material  and  is  prepared  for  use  like  any  other  pro- 
duct. Land  is  cleared,  fenced,  broken  up  ;  seed  is  sown, 
crops  are  gathered ;  when  the  returns  diminish,  manures  are 
saved  and  applied  ;  houses  are  put  up  for  the  men,  and  perhaps 
for  the  cattle.  If  the  highest  improvement  and  greatest  mul- 
tiplication of  the  human  race  depends  on  this  kind  of  life, 
which  makes  all  division  of  labor  and  all  city  life  possible, 
here  we  have  the  destination  of  man,  his  highest  culture 
pointing  to  a  recognition  of  a  right  to  do  such  things,  and  to 
be  sure  of  permanence  in  occupation,  as  well  as  of  the  right 
of  transfer  if  the  owner  desires.  Land  thus  cannot  be  entirely 
severed  from  other  objects  that  can  be  held  as  property,  al- 
though it  may  have  some  relations  to  a  community  which  its 
special  relation  to  an  individual  cannot  annihilate.  (Comp.  § 
26). 

4.  As  we  have  said  before,  land  in  new  settlements  has  no 
value  in  exchange.  Its  value  in  the  market,  apart  from  situ- 
ation, which  it  shares  with  crops  and  other  products,  and 
from  fertility,  is  determined  by  labor,  and  the  actual  price  at  a 
certain  time  may  not  be  an  equivalent  for  the  labor  of  fencing, 
clearing,  etc.,  and  of  providing  against  the  law  of  diminishing 
returns  by  new  fertilizers.  Whatever  M.  Buchez  can  say  of 
the  right  to  the  material  as  procured  by  the  labor  spent  upon 
it,  can  be  said  of  the  earth  as  the  source  of  all  growth  and 
product. 

It  is  true,  indeed,  that  as  the  earth  cannot  grow,  land  is  a 
monopoly,  and  good,  accessible  land  a  narrower  monopoly. 
But  so  are  the  products  of  land,  and  it  may  be  possible  for 
over-population  to  make  the  amount  of  accessible  supplies  of 
food  insufficient.  Ought  not  the  state,  on  the  principle  of  an 
equal  right  of  all  to  all,  and  especially  of  an  equal  right  of  all 
to  life,  to  interfere  in  order  that  at  such  a  crisis  all  might  have 
their  exact  share. 


PARTICULAR   RIGHTS.  J\ 

§  32. 
To  sum  up  what  we  have  said  of  the  right  of  property  in 
Summary  as  to  land,  we  observe  : 

property    especially  111 

inland.  I.   That  labor  cannot  be   the   sole  source   of 

that  right  because  the  material  on  which  it  is  expended  is  not 
produced  by  labor. 

2.  A  res  uulliiis,  or  that  which  has  no  personal  owner,  can- 
not belong  to  mankind  in  joint  ownership.  Otherwise,  there 
can  be  no  property  held  by  the  state  unless  it  can  be  shown 
that  there  has  been  a  partition  of  property  between  states. 

3.  Occupation  must  confer  a  right  to  that  which  has  no 
owner,  if  we  define  occupation  as  taking  possession  with  in- 
tention to  consume  or  to  employ  in  production,  for  this  is  an 
equal  impartial  condition  for  all,  interferes  with  the  right  of 
no  one,  and  fulfils  the  destination  of  man  to  spread  over  the 
world.  Moreover,  it  is  as  easy  to  account  for  individual  own- 
ership of  land  as  of  material  not  produced  by  labor. 

4.  The  common  use  or  common  ownership  of  land  in  pri- 
meval times,  of  which  many  traces  still  exist,  does  not  prove 
that  such  a  tenure  is  an  ultimate  one  for  human  society. 
There  were  reasons  for  its  existence  lying  in  the  nature  of 
communities  where  the  members  were  blood-relatives,  where 
land  was  worth  nothing  by  reason  of  its  abundance,  and  where 
the  occupations  of  society  did  not  need  separate  ownership 
of  the  soil ;  but  with  the  advance  of  industry,  the  mixing  up  of 
men  of  diverse  extraction,  and  the  greater  cultivation  of  the 
soil,  the  reasons  have  ceased.  The  development  of  society 
points  to  a  higher  state  of  individual  independence,  and  yet 
of  the  dependence  of  men  on  one  another,  of  mutual  need 
without  isolation. 

5.  The  notion  that  private  property  in  land  may  by  the 
superior  skill  or  greater  success  of  some  prevent  others  from 
having  a  share  in  the  earth's  surface,  because  the  earth  is 
fixed  in  area  while  men  increase  beyond  any  fixed  limit  ex- 
cept the  possibility  of  subsisting,  is  •  most  unpractical  and 
false  one.     It  would  be  a  calamity  if  every  one  had  a  piece  of 


72  POLITICAL   SCIENCE. 

ground.  The  division  of  labor  is  the  goal  which  high  civili- 
zation reaches.  More  is  produced,  men  are  wiser  and  hap- 
pier by  multiplicity  of  employments  than  if  they  had  one  and 
the  same  ;  and  if  the  earth  could  be  distributed  into  shares, 
men  and  society  being  as  now,  thousands  would  want  to  get 
rid  of  their  portions,  because  they  had  some  employment 
which  they  could  pursue  at  greater  advantage. 


CONTRACT. 

§  33- 
A  contract  is  a  transaction  in  which  at  least  two  persons, 
what  is  a  con-  or  parties,  acting  freely,  give  to  one  another 
rights  and  impose  on  one  another  obligations 
which  relate  wholly  or  partly  to  some  performance  in  the 
future.  If  an  exchange  of  property  is  made  at  once,  the 
transaction  comes  to  an  end,  and  no  obligations  or  rights  in 
the  future  grow  out  of  it,  as  when  a  man  buys  a  horse,  pay- 
ing down  upon  the  spot  the  price  for  it,  and  it  is  delivered  to 
him  at  once.  At  the  most  it  can  be  said  that  a  state  of  con- 
tract exists  during  the  few  moments  taken  up  in  the  fulfilment ; 
but  when  the  moments  have  passed,  the  men  are  to  one  an- 
other like  any  other  men.  In  a  contract,  however,  a  new 
relation  of  the  parties  to  one  another  begins  at  the  time  of 
closing  the  contract,  and  continues  until  it  is  fulfilled  or  until 
they  have  released  one  another  from  the  obligation.  It  may 
be,  indeed,  that  one  party  performs  his  part  at  once,  so  that 
while  he  has  a  right  he  has  no  obligation,  and  while  the  other 
has  an  obligation  he  has  no  right,  but  the  transaction  would 
not  be  a  contract,  unless  the  performance  on  one  or  both  sides 
lay  in  the  future.  Thus  a  person  may  pay  down  at  the  begin- 
ning of  the  year  a  subscription  for  the  year  for  a  newspaper, 
or  may  pay  beforehand  the  wages  of  a  laborer  for  a  month. 
The  subscriber  or  hirer  has  rights  growing  out  of  the  agree- 
ment, but  has  fulfilled  his  obligation  ;  the  publisher  or  laborer 
is  under  an  obligation,  but  can  claim  no  right.     Most  con- 


PARTICULAR   RIGHTS.  J?, 

tracts,  however,  are  of  such  a  kind  that  both  parties  place 
themselves  under  an  obligation  and  acquire  from  each  other 
rights  in  regard  to  something  in  the  future.  Thus  in  hiring  a 
house  the  tenant  has  the  obligation  to  pay  a  rent  and  a  right 
to  occupy  the  house  ;  and  the  owner  has  a  right  to  the  pay- 
ment of  the  rent  and  an  obligation  to  leave  the  tenant  in  un- 
disturbed possession  for  the  time  fixed.  Contract  thus 
derives  much  of  its  importance  from  the  connection  which  it 
begins  between  present  and  future  time.  Man  is  no  longer  a 
creature  of  the  present,  but  draws  his  motives  from,  and  is 
affected  in  his  desires  by  that  part  of  life  which  is  yet  to  come. 
He  brings  considerations  from  the  future  into  the  present,  and 
thus  brings  permanent  purpose,  foresight,  control  over  present 
impulse,  into  his  character. 

Contract  can  hardly  find  place  in  those  states  of  society 

Contracts  increase  where  there  is  no  or  almost  no  division  of  labor, 

with  civilization.       for  jt  jmpijes  mutual  service,  while,  where  there 

is  no  division  of  labor,  men  are  isolated  and  do  all  things  for 
themselves.  Nor  could  it  be  an  important  form  of  rights,  where 
land  was  held  in  common,  since  all  the  communities  that 
could  readily  have  intercourse  with  one  another  would  have 
much  the  same  occupations,  and  the  individual's  choice  as  to 
his  work  would  be  exceedingly  limited.  But  as  soon  as  there 
are  fixed  diversities  of  employment  among  free  laborers,  as 
soon  as  different  parts  of  the  world  know  of  the  supplies  for 
wants  to  be  found  elsewhere  which  may  be  obtained  by  ex- 
change, and  have  means  of  transport,  and  especially  when 
there  is  a  medium  of  exchange,  convenient  and  desired  by 
all;  contract  will  of  course  begin,  because  each  person  can 
produce  more  of  his  special  product  than  he  wants  for  his  own 
use.  At  first  it  will  be  confined  to  persons  living  not  far  off 
from  one  another,  but  at  length  it  will  reach  its  arms  across 
oceans  and  bind  together  entire  strangers.  It  is,  therefore,  a 
social  transaction,  bringing  men  together  in  more  or  less  per- 
manent business  unions,  and  is  related  to  labor  and  property 
something  as  marriage  answers  to  difference  of  sex.  Its  forms 
are  so  various,  it  lies  so  at  the  bottom  of  the  intercourse  of 


74  POLITICAL  SCIENCE. 

business,  that  it  cannot  be  doubted  that  it  rests  on  natural 
reason  ;  it  is  and  should  be  acknowledged  as  such,  because  it  is 
essential  to  the  development   and  advance  of  human  society. 

§  34- 
A  contract  begins  with  acts  of  will  having  reference  to  a 
How  contract  be-  specific  object  and  a  specific  person  or  persons, 

gins  ;      its    binding  ...  .  . 

force.  and  imposing  a  moral  restraint  on  any  act  of  one  s 

own  will  in  the  future  which  would  make  the  first  act  void. 
In  it  a  man  is  a  source  of  power  over  himself ;  he  transfers 
something  to  another  in  purpose,  just  as  if  he  gave  away  a 
piece  of  property  out  and  out.  As  he  cannot  recall  the  prop- 
erty, and  has,  by  the  act  of  giving,  ended  his  connection  with 
the  property,  so  that  no  act  of  will  directed  towards  it  will 
have  any  effect ;  so  he  gives  a  right  over  himself  to  another, 
and  ends  his  moral  power  in  regard  to  that  right.  But  where- 
in consists  the  obligation  to  keep  a  contract  ?  Some  might 
think  that  it  lay  in  the  free  will  of  the  contracting  parties,  in 
their  power  over  themselves.  But  this,  although  it  must  be 
presupposed,  is  not  enough.  If  the  binding  force  of  a  con- 
tract were  to  be  ascribed  simply  to  a  man's  free  will  in  rela- 
tion to  something  which  was  his,  why  might  not  the  same 
will  break  the  contract  ?  We  must  seek  for  a  moral  founda- 
tion which  can  go  along  with  that  necessity  of  contract  to 
human  intercourse,  which  might  be  a  reason  of  itself  for 
enforcing  the  obligation  ex  contractu.  That  moral  foundation 
is  the  sacredness  of  truth  and  the  necessity  of  trust  for  all  vir- 
tues that  look  heavenward,  or  towards  men  who  could  have 
no  fellowship  with  one  another  if  separated  by  distrust,  but 
would  be  suspicious  and  suspecting,  hateful  and  hating  one 
another.  If  the  expression  may  be  allowed,  a  man  by  an  en- 
gagement to  another  creates  truth  and  can  never  rightfully 
create  a  lie  in  his  mind.  Truth  and  trust  are  the  props  with- 
out which  "  the  pillared  firmament  is  rottenness,  and  earth's 
base  built  on  stubble." 

There  is  yet  another  consideration  which  shows  the  binding 
force  of  contracts,  at  least  in  the  greater  number  of  cases.     By 


PARTICULAR   RIGHTS.  75 

the  motive  which  I  have  presented  to  the  mind  of  another,  I 
have  induced  him  to  agree  to  give  me  his  labor  or  his  product 
in  expectation  of  my  transferring  something  of  value  to  him. 
If  I  do  not  fulfil  my  engagement,  I  really  deprive  him  of 
what  is  his.  I  make  him  lose  or  expose  him  to  the  risk  of 
losing  his  labor  or  capital,  so  that  the  transaction  does  not 
essentially  differ  from  my  taking  away,  without  an  equiva- 
lent, something  that  he  owns,  except  so  far  as  it  has  in  view 
some  future  performance. 

To  put  all  this  in  the  simplest  form  we  may  start  from  the 
right  of  property,  and  suppose  a  man  to  have  a  product  of 
labor  on  hand  which  he  is  desirous  of  selling.  He  can,  if  he 
please,  keep  the  product  for  sale  in  the  future.  Some  one 
offers  to  take  the  product  if  he  will  wait  and  receive  another 
product  in  exchange.  The  exchange  would  have  been  a 
transaction  consistent  with  the  rights  of  both,  if  they  had  ex- 
changed on  the  spot.  What  is  there  in  the  futurity  of  the 
exchange  to  affect  the  transaction,  except  that  the  parties 
consider  each  other  pledged  to  do  a  thing  in  the  future  which 
would  have  been  mere  purchase  and  sale,  if  the  delivery  had 
been  on  the  instant  ?  If,  now,  such  an  obligation  really  ex- 
ists, either  because  it  is  necessary  for  carrying  on  the  transac- 
tions of  human  life  or  for  some  higher  reason,  contract  has  a 
binding  force.  If  it  unites  present  and  future,  if  it  is  a  prin- 
cipal motive  to  labor,  if  it  is  a  source  of  union  among  men,  if 
division  of  labor  to  a  great  extent  would  be  paralyzed  without 
it,  if  it  rests  on  the  sacredness  of  truth  as  a  principle  of  uni- 
versal morality,  no  right  can  have  a  higher  origin. 

$  35- 
A  contract  implies  in  each  party  a  right  to  do  that  to  which 
Contract  does  not  the  contract  relates,  and  to  pass  over  to  another 

create,      but      only  . 

transfers  rights.  what  is  one  s  own.  If  I  have  no  right  to  use 
my  labor  according  to  my  will,  or  have  no  property  in  a  thing, 
I  cannot  transfer  the  product  of  my  labor  or  what  I  have  in 
my  hands  to  another.  It  is  thus  the  exercise  in  a  special  case, 
for  the  benefit  of  another,  of  a  right  already  existing.     I  can- 


J6  POLITICAL   SCIENCE. 

not  make  that  the  property  of  another  by  contract  which  is 
not  mine  already.  Were  it  otherwise,  were  contract  a  source 
of  new  power,  it  could  affect  and  overthrow  all  the  relations 
of  the  world,  it  would  be  stronger  than  God.  Nor  do  I  see 
how  a  man  by  his  power  of  making  contracts  can  renounce 
forever  the  power  of  making  contracts.  We  have  already 
seen  that  a  man  has  no  power,  according  to  the  law  of  right, 
to  waive  his  rights  in  general,  for  instance,  to  consent  to  be- 
coming the  slave  of  another,  since  this  implies  an  abridgment 
of  his  moral  nature,  a  shrinking  of  his  existence  and  a  cutting 
off  of  his  power  to  do  good.  So  to  consent  to  hold  a  man  as 
a  slave  is  to  assume  that  to  be  a  right  which  is  not  such,  but  is 
a  flagitious  transaction.  On  the  same  principle,  a  man  can 
never  make  a  morally  binding  contract  to  do  wrong,  or  be  jus- 
immorai  contracts  tified  hY  a  contract  in  joining  another  in  doing 
V0ld'  wrong.     Immoral  contracts,  therefore,  are  void, 

and  the  breach  of  them  has  no  remedy  by  the  laws  of  upright 
states.  To  enter  into  such  a  contract  may  be,  and  in  many 
cases  is,  a  penal  offence  against  a  state's  existence  or  welfare, 
as  when  bribes  are  offered  to  voters,  representatives  or  jurors, 
or  an  agreement  is  made  to  supply  an  enemy  in  war  with 
arms  ;  and  even  when  the  effect  of  the  transaction  does  not 
reach  public  life,  its  immorality  makes  it  void.  A  contract  to 
do  an  illegal  act  can  scarcely  have  validity  by  the  law  of  a 
state,  and  so  cannot  be  enforced,  although  it  is  conceivable 
that  it  may  be  morally  binding.  Thus  a  promise  to  pay  a 
public  agent  for  doing  his  duty  has  been  justly  held  to  be  void. 
Hence  it  is  common  for  state  laws  to  pronounce  gambling 
and  betting  contracts  void,  and  they  will  not  provide  a  reme- 
dy, when  a  person  refuses  to  pay  such  a  debt.  A  scnatus 
consultnm  at  Rome  forbade  playing  for  money,  except  in 
contests  with  the  spear  or  javelin,  or  in  running,  leaping, 
wrestling,  "  quod  virtutis  causa  fiat."  Here  an  action  might 
be  brought  for  the  money  staked,  but  "  ubi  pro  virtute  ccrta- 
men  non  fit  "  there  could  be  no  action.  When  money  had 
been  paid  for  doing  something  base  or  unjust,  if  both  giver 
and  receiver  were  sharers  in  the  baseness,  there  could  be  no 


PARTICULAR   RIGHTS.  JJ 

recovery  of  it  by  the  giver,  as  "  si  pcciuiia  detur  ut  male  judi- 
cetur,"  where  it  was  base  to  bribe  a  judge,  and  base  to  take 
a  bribe.  But  if  the  baseness  was  on  the  side  of  the  acceptor 
of  the  fee  alone,  it  could  be  recovered  even  if  he  had  been 
true  to  his  word  {ctiamsi  res  secuta  sit).  The  first  supposi- 
tion would  include  something  given  stupri  causa,  or  paid  to 
prevent  a  complaint  or  information  in  reference  to  a  crime 
that  had  been  committed.  When  the  giver,  not  the  receiver, 
is  involved  in  the  turpitude,  he  too  could  not  recover  the 
money,  that,  for  instance,  paid  to  a  professed  and  licensed 
merctrix,  such  a  one  being  under  the  protection  of  the  law. 
See  more  in  Vangerow,  Pandekt.  iii.,  §§  627,  628,  673. 
There  may  be  cases  where  a  person  has  excited  expecta- 
Quasi  contracts;   tions  in  the  mind  of  another  knowingly,  without 

Promises ;        Nuda  1     1  r  1 

p^ta.  having  made  any  express,  much  less  any  formal 

agreement.  These  engagements  have  the  nature  of  contracts 
without  being  such  strictly  ;  they  contain  considerations 
which  influence  the  conduct  of  another ;  there  seems  to  be  no 
reason,  therefore,  why  these  quasi  contracts  should  not  be 
treated  as  binding  the  person  who  allowed  or  created  the  ex- 
pectation, if  he  was  aware  of  it  and  if  the  other  fulfilled  what 
he  considered  to  be  his  part.  Must  now  the  consideration  be 
The  consideration  always  a  material  substance,  or  some  service 
m  a  contract  what?  Spenj-  Up0n  a  material  substance,  or  may  it  be  a 
mode  of  treatment  also  or  expression  of  a  sentiment  ?  As, 
for  instance,  may  a  person,  having  legally  bound  himself  to 
educate  and  support  an  orphan,  on  condition  (among  other 
things)  of  respectful  treatment,  be  justified  in  refusing  to  con- 
tinue the  aid  on  the  ground  of  manifest  and  persistent  disre- 
spect ?  If  the  disrespect  consisted  of  outward  acts  of  insult 
or  neglect,  such  acts  would  constitute  a  want  of  a  considera- 
tion. Some  states  with  reason  go  farther.  It  has  been  said 
that  at  Athens  there  was  an  action  for  ingratitude  ;  *  the 
Romans  required  of  the  freedman  gratitude  towards  his  pat- 

*  Compare    Meier    u.    Schumann,    Attische    Prozess,    pp.    540- 
544- 


/S  POLITICAL   SCIENCE. 

ron,  gave  the  latter  a  power  to  banish  him  from  Rome  for  the 
want  of  it,  and  by  the  Lex  Aclia  Scntia  allowed  the  prosecu- 
tion of  ungrateful  freedmen.     (Dig.  xl.  9). 

A  nudum  pactum,  at  least  where  a  contract  is  not  under 
whyiawdoesnot  seal,  is  generally  void,  so  that  no  action  can  arise 

generally   recognize  rtfi  •  t     i   ■     • 

nuda pacta.  out  of  the  non-fulfilment  of  it,  and  this  is  true  of 

all  promises.  But  why  is  it  true  ?  It  is  very  easy  to  state  a 
promise  in  such  clear  terms  that  it  can,  as  far  as  the  mind  of 
the  promiser  is  concerned,  be  enforced  ;  and  it  is  easy  also  to 
show,  by  writing  if  necessary,  that  the  promise  has  been  a 
matter  of  serious  reflection.  It  may  also  be  evident  that  the 
promiser  considered  it  to  be  his  duty  to  make  the  promise.  But, 
on  the  other  hand,  if  he  meant  to  bind  himself  for  the  future, 
why  did  he  not  give  to  his  intention  the  form  of  a  contract? 
and  as  he  calls  for  no  answering  performance  it  is  natural  to 
suppose  that  he  left  the  matter  in  such  a  condition  that  he 
could  rescind  it.  As  mere  kindness  or  some  other  moral  sen- 
timent dictated  the  promise,  so  a  change  of  feeling  or  some 
new  relations  towards  the  promisee  may  lead  him  to  recall  it. 

^36. 
There  are  two  kinds  of  contracts,  as  far  as  the  subject-mat- 
Two  kinds  of  con-  ter  ls  concerned,  one  in  which  the  parties  enter 
into  a  contract-relation,  the  terms  of  which  they 
make  or  define  wholly  or  in  part  for  themselves  ;  and  another, 
in  which  they  enter  into  relations  determined  by  something 
outside  of  themselves,  and  which  they,  according  to  the  law 
of  nature,  of  morality,  or  of  the  state,  cannot  alter.  Most 
contracts,  especially  those  of  business,  are  of  the  first  class. 
Thus  domestic  service  being  of  various  kinds,  the  contracting 
parties  come  to  an  understanding  what  it  shall  be,  or  leave  it 
to  be  defined  by  the  custom  of  the  place  ;  so  also  partnership 
does  not  demand  the  same  share  of  capital  or  the  same  active 
concern  from  all  the  partners  ;  and  agency  has  its  own  con- 
ditions and  performances  in  each  especial  case.  There  are, 
however,  a  few  contracts  where  the  agreements  of  the  parties 
cannot  change  the  form  or  the  thing  to  be  performed,  or  even 


PARTICULAR   RIGHTS.  Jg 

the  consideration  in  any  essential  respect.  When  certain 
Contract  used  to  Sreat  transactions  of  life  are  reduced  in  theory 
explain  society,  to  tjie  form  Qf  contract,  they  must  fall  into  this 
class.  If  there  is  a  social  contract,  it  must  be  conformed  to  the 
laws  of  justice,  and  cannot  oppose  the  rights  of  individuals  or 
the  laws  of  God.  If  the  church  is  called  a  voluntary  body, 
the  members  of  which  determine  the  order  and  discipline,  it 
does  not  depend  on  the  will  of  its  members  so  far  forth  as  to 
disregard  the  doctrine  or  duties  implied  in  Christianity. 
The  same  may  be  said,  as  will  soon  appear,  of  marriage, 
which  cannot  go  aside  from  a  certain  fixed  idea.  Whether 
these  institutions  do  in  any  way  owe  their  origin  to  contract 
we  will  not  now  discuss,  but  we  add  the  remark  that,  as  con- 
tract is  one  of  the  leading  ways  for  men  to  enter  into  new  re- 
lations, it  is  often  used  to  explain  great  transactions  of  a 
moral  or  religious  kind,  although  it  unfolds  in  but  an  inade- 
God's  dealings  quate  way  their  true  nature.  Thus  the  Scrip- 
Yrithmen,  tures  represent  God  as  entering  into  a  covenant 

with  the  Hebrew  people  because  he  promised  great  blessings 
if  the  people  remained  faithful ;  but  the  transaction  was  not  of 
the  contract  species,  in  so  far  as  it  was  not  really  left  to  the 
option  of  the  people  whether  they  would  close  the  contract  or 
not,  since  over  against  the  supreme  moral  Governor  and  Lord 
they  were  obliged  to  accept  of  it.  Following  the  analogy  of 
this  representation  which  contains  most  important  truth,  the 
and  the  moral  theologians  have  constructed  a  covenant  of  God 
state  of  men.  ^^  Adam,  on  account  of  violation  of  which  he 

and  his  descendants  were  involved  in  evil.  But  when  they 
come  to  apply  this  form  of  jural  proceedings  to  a  great  race 
principle  and  a  moral  economy,  and  to  reason  from  it,  as  if 
the  system  of  things  could  be  brought  within  Roman  or  Dutch 
law,  we  must  respectfully  ask  whether  a  great  law  of  charac- 
ter like  the  spread  of  evil  among  men  can  receive  a  satisfac- 
tory solution  from  such  penalties  as  the  corruption  of  blood 
of  a  political  offender's  descendants. 


8o  POLITICAL   SCIENCE. 


ASSOCIATION. 


^  37- 
By  the  right  of  association  is  meant  the  right  of  uniting  in 
The  right  of  asso-  bodies,   sometimes  considerably  numerous,  for 
c,atlon-  any  purpose  pertaining  to  human  nature  and  not 

in  collision  with  the  natural  unions  of  the  family  and  the  state. 
These  associations  are  voluntary  and  artificial,  i.  e.,  not  given 
in  nature,  have  a  definite  sphere  within  which  they  act,  make 
their  own  rules,  have  generally  their  own  officers.  The  mem- 
bers enter  into  them  with  more  or  less  solemnity,  sometimes 
in  the  way  of  a  contract,  as  when  the  object  is  their  pecunia- 
ry advantage,  sometimes  of  a  promise  or  an  understanding. 
The  members  may  either  seldom  meet,  their  business  being 
transacted  by  agents  and  officers,  or  it  may  be  their  main  ob- 
ject to  meet,  and  that  frequently.  There  may  be  in  these 
unions  a  single  definite  point,  as  when  laborers  combine  to 
raise  wages,  or  a  number  of  points  to  be  carried,  as  in  politi- 
cal clubs  or  leagues.  They  may  be  open  so  that  auditors  or 
reporters  may  be  admitted  to  the  sessions,  or  so  secret  as  to 
require  pass-words  and  oaths  not  to  divulge  the  proceedings. 
They  may  be  mere  assemblages  of  individuals  with  slight 
bonds  of  union,  or  joined  together  by  interests  which  lead  to 
a  close  constitution  with  important  provisions  for'self-govern- 
ment.  They  may  be  too  unimportant  to  be  noticed  by  the 
state,  or  may  have  corporate  powers,  and  a  dangerous  strength 
gained  by  combination. 

Such  unions  will  not  generally  exist  until  society  has  a  cer- 
tain compactness,  until  centres  of  population  rise,  and  a  num- 
ber of  persons  having  common  interests  or  pursuits  are  found 
together.  Then,  with  that  advance  of  the  means  of  intercourse 
which  renders  communication  easy  and  safe  between  distant 
parts,  their  sphere  will  be  extended  so  that  the  members  of 
some  kinds  of  associations  will  be  scattered  over  the  world. 
Instances  of  them  are  offered  in  the  history  of  Greece  by  the 
dlaaoi   or   fraternities    for    religious    celebrations,    especially 


PARTICULAR   RIGHTS.  8 1 

for  those  in  honor  of  Bacchus  ;  by  the  political  clubs  or 
'Eratpelat  which  at  Athens  became,  during  its  troubles,  a 
most  formidable  power,  and  led  to  the  rule  of  the  four  hun- 
dred,* and  which  were  professedly  founded  to  help  the  mem- 
bers into  office,  and  aid  them  in  the  courts,  and  by  the 
"Epavoi  or  associations  for  mutual  assistance.  At  Rome 
the  operations  of  the  associations  were  on  a  much  larger  scale. 
The  "  colleges  of  workmen  " — the  institution  of  eight  of  which 
is  ascribed  to  Numa — were  very  numerous  ;  and  the  publicani 
or  farmers  of  the  revenue  in  a  number  of  bodies,  forming 
joint-stock  companies  with  shares  of  different  amounts,  had 
vast  sums  of  money  in  their  hands,  and  were  able  to  make  ad- 
vances from  their  funds  to  the  state  in  its  needs.  The  colleges 
of  navicularii,  or  shippers  and  freighters  on  the  sea  and  navi- 
gable rivers,  had  in  their  hands  the  immense  work  of  supply- 
ing the  cities  of  Italy,  especially  Rome,  with  grain,  and 
similar  corporations  existed  in  other  parts  of  the  empire  ; 
the  bakers  also  were  associated  to  furnish  bread  to  the  poor 
in  the  "  frumentations  "  on  a  great  scale  towards  the  end  of 
the  republic.  The  public  scribes  constituted  a  large  and  im- 
portant college.  The  sodalities  for  religious  and  festive  pur- 
poses embraced  another  class  of  unions,  which,  as  running 
easily  into  political  clubs,  were  viewed  with  suspicion  under 
the  emperors.  The  priests  of  several  ancient  divinities  and 
of  deified  emperors  were  associated  in  colleges,  and  the 
Augustales  of  many  municipal  towns  constituted  almost  an 
order  of  citizens.  There  were  collegia  tenniorum  also,  where 
the  poor  members  provided  for  the  burial  of  deceased  brethren 
by  a  monthly  contribution.  These  associations  were  con- 
trolled by  the  law  and  police  of  the  empire.  They  were  in- 
corporated or  made  jural  persons,  and  could  be  dissolved  by 
public  authority.  The  self-protecting  guilds  of  the  middle 
ages  were  unions  partly  for  industrial,  partly  for  political  pur- 
poses, and  many  of  the  towns  came  to  have  a  constitution 
founded  upon  them.     The  fraternities  of  monks  and  nuns,  and 

Comp.  Grote,  vi.,  393,  note. 


82  POLITICAL    SCIENCE. 

the  universities  of  the  same  period,  are  other  instances  of 
unions  first  voluntary,  then  controlled  by  law.  But  in  mod- 
ern times  the  principle  of  association  has  received  its  largest 
development. 

Unions  for  the  purposes  of  trade  or  colonization  have 
changed  the  face  of  the  world.  Various  forms  of  benevolence 
have  had  fraternities  with  members  diffused  through  great 
nations,  and  with  emissaries  acting  on  remote  lands.  The 
various  branches  of  knowledge,  the  arts  and  sciences,  have 
gained  by  association  new  strength  and  facility  of  correspond- 
ence. Even  workmen  by  their  trades  unions  are  able  to  form 
a  powerful  class  in  modern  society.  The  political  spirit  gives 
rise  to  clubs  or  leagues  which  control  public  opinion  on  im- 
portant questions  of  the  day,  or  seek  to  get  the  government 
of  towns  or  of  a  nation  into  their  hands.  It  is  shown  by  this 
brief  sketch  that  as  a  country  grows  rich  and  populous,  the 
individual  seeks  aid  for  his  various  aims  in  life  by  uniting  more 
and  more  with  others  ;  so  that  the  tendency  towards  a  commu- 
nity life,  so  strong  in  the  primeval  expansions  of  the  family, 
reappears  under  modified  forms  in  societies  of  later  growth, 
restricted  in  its  sphere,  without  the  shackles  of  place,  and  in 
connection  with  the  freest  disposal  of  property.  But  it  is  evi- 
dent that  a  joint-stock  company,  if  not  checked,  may  become 
by  its  political  power,  like  that  of  the  East  India  Company, 
or  by  its  influence  over  a  legislature  an  impcriam  in  impe- 
ria  ;  that  the  terrors  which  trades  unions  bring  before  work- 
men who  refuse  to  join  them  are  anything  but  a  preparation 
for  a  life  of  political  or  moral  freedom  ;  and  that  political 
clubs  may  be  yet  more  tyrannical.  Associations,  therefore, 
besides  the  protection,  need  the  check,  of  public  law,  and  the 
more,  because  persons  united  in  bodies  do,  or  suffer  to  be 
done,  evils  at  which  an  individual,  acting  alone,  would  be  hor- 
rified. It  may  also  be  questioned  whether  any  secret  socie- 
ties, unless  for  merely  social  purposes,  ought  to  be  permitted 
to  exist,  or  at  least  to  have  a  juristic  existence,  for  the  indi- 
vidual as  well  as  the  community  has  a  right  to  be  freed  from 
apprehension  of  evil  from  those  who   are   stronger;  and  the 


PARTICULAR  RIGHTS.  83 

oath  or  promise  with  the  feeling  of  honor  towards  the  society 
is  so  strong,  and  the  sense  of  personal  responsibility  so  weak, 
that  such  bodies,  if  their  object  does  not  forbid,  are  in  great 
danger  of  hatching  evil.  In  fact,  the  obligation  to  secrecy 
itself  is  often  a  ground  of  suspicion  that  the  object  in  view  is 
not  consistent  with  the  general  welfare.  But,  however  this 
may  be,  associations  in  general,  especially  those  which  man- 
age capital,  need  strict  supervision  ;  practically  the  share- 
holders neither  know  nor  can  know  much  about  them,  and  so 
ought  not  to  be  responsible  as  principals  ;  hence,  among  the 
safeguards  against  the  wrongs  that  can  be  done  by  such  bodies, 
it  seems  to  be  demanded,  by  the  rights  of  individuals  as  well 
as  by  general  justice,  that  their  officers  should  be  civilly  and 
penally  amenable  for  their  doings. 

The  associations  of  old  and  wealthy  communities  are  able 
to  control  and  overawe  individuals  who  are  engaged  in  the 
same  pursuits.  Hence,  it  may  be  a  question  sometimes 
whether  they  ought  to  be  allowed  to  exist,  as  relatively  de- 
pressing and  oppressing  those  who  do  not  join  their  unions. 
There  seems  to  be  no  injustice  in  this,  if  they  make  the  pro- 
ductive efforts  of  a  man  working  for  himself  unprofitable  and 
fruitless. 

Voluntary  associations,  by  their  organization  and  power 
over  members,  approach  the  character  of  the  natural  commu- 
nities, as  the  state,  the  church,  the  family,  and  with  them 
may  be  called  societies.  The  difference  between  the  two 
classes  of  societies  is  not  only  that  the  voluntary  associations 
have  a  restricted  activity  and  a  scattered  membership,  but 
also  that  their  functions  are  fixed  chiefly  by  their  objects, 
which  vary  greatly  ;  while  the  natural  societies  are  in  great 
part  determined  in  their  constitution  by  something  in  the  na- 
ture of  man  and  not  by  the  will  of  the  society.  Thus,  the 
state  has  fixed  ends,  however  states  may  differ,  and  families 
are  constituted  by  the  nature  of  human  beings,  and  the  church 
chiefly  by  the  doctrines  and  precepts  of  religion. 


84  POLITICAL  SCIENCE. 


FAMILY    STATE. 

§38. 
There  are  quite  a  number  of  rights  that  are  connected  with 
the  family  state.      Among  these  we  name  mar- 

The  family  state.        ...  -  . 

nage  itself,  or  the  contract  of  the  persons  enter- 
ing into  the  marriage  state,  and  the  right  of  the  parties  to 
form  such  a  union,  together  with  the  dissolution  of  the  union 
by  divorce  or  separation  ;  their  mutual  rights  and  obligations  ; 
the  patria  postestas  with  the  rights  and  obligations  of  children  ; 
minority  and  majority  ;  the  obligations  of  others  towards  the 
parties,  including  the  breach  of  such  obligation,  especially 
the  crime  of  adultery ;  the  right  to  marry  a  second  time,  and 
the  obligation  of  the  head  of  the  family  towards  the  family  ; 
under  which  head  the  subject  of  testamentary  disposition  will 
be  considered. 

If  any  relations  in  human  life  can  be  called  natural  and 
necessary,  those  of  the  family  must  have  these  attributes.  If 
any  are  of  importance  in  themselves  and  for  the  conservation 
of  all  others,  these  are  so  in  a  pre-eminent  degree.  If  any 
show  the  prevision  of  the  divine  mind  by  a  series  of  designs, 
one  built  on  another,  until  the  structure  of  human  society  and 
obedience  to  God  are  reached,  it  is  the  family  that  contains 
in  itself  this  system  of  purposes.  The  formation  of  the  sexes 
for  each  other  ;  the  union  of  bodily  desire  and  of  devotion  ; 
the  mother's  love  of  the  most  helpless  of  beings  ;  the  care  of 
the  child  until  it  can  take  care  of  itself;  the  family  feeling 
that  arises  between  children  ;  the  necessary  morality  in  the 
family,  especially  when  there  are  children  of  both  sexes  ;  the 
preparation  for  obedience  to  law  and  to  God  by  the  family 
training  ;  the  close  ties  of  blood-relationship  binding  men  to- 
gether in  clans  and  tribes  and  securing  the  existence  of  states  ; 
the  education  for  religious  reverence  by  reverence  of  parents — 
such  considerations  show  how  full  of  meaning  the  family  is, 
and  they  will  lead  us  to  admit  at  once  that  if  there  are  rights 


PARTICULAR   RIGHTS.  85 

and  obligations  anywhere  among  men,  they  must  be  found 
here. 

The  relations  which  begin  with  and  grow  out  of  marriage 
blend  eminently  the  jural  and  the  moral,  and  show  how  vain 
it  is  to  place  them  in  entirely  separate  spheres  even  by  the 
side  of  one  another.  It  is  for  this  reason  that  the  celebration 
of  marriage  has  been  generally  attended  with  religious  cere- 
monies, and  that  the  system  of  institutions  having  this  for 
their  beginning,  together  with  the  right  of  testament,  were 
early  brought  within  the  jurisdiction  of  interpreters  of  Chris- 
tian duties.  The  question  for  whom  is  it  lawful  to  contract 
marriage  as  far  as  hindrances  by  blood  were  concerned,  was 
brought  before  the  bar  of  Roman  and  Jewish  law  ;  that  of 
monogamy  has  been  submitted  to  Roman  law  and  to  the 
New  Testament  ;  that  of  divorce  to  the  New  Testament.  And 
we  find  a  new  set  of  moral  notions  suggested,  but  not  sanc- 
tioned by  the  latter  authority,  which,  by  the  rigid  form  they 
took,  produced  as  much  evil  as  good. 

§  39- 
The  first  point  to  be  looked  at  in  relation  to  marriage  is  its 
Entrance  into  mar-  beginning.  We  have  in  common  use  the  ex- 
nage  by  contract,  pression  to  contract  marriage,  and  with  great 
propriety.  Two  persons  do  contract,  with  or  without  form, 
to  live  together  in  the  state  generally  understood  to  be  mar- 
riage. The  contract  looks  towards  a  particular  state  so-called, 
and  has  no  power  to  modify  or  alter  it.  Thus,  to  agree  to 
live  together  as  man  and  wife  as  long  as  love  lasts,  or  on  con- 
dition of  having  children,  or  for  a  term  of  years,  or  with  leave 
given  to  either  party,  as  to  the  husband  by  the  wife,  to  have 
a  similar  relation  simultaneously  with  another  party — these 
would  be  immoral  agreements,  as  truly  so  as  to  form  a  part- 
nership to  engage  in  the  slave  trade,  or  to  frame  a  compact, 
like  that  of  the  Pilgrims  at  Plymouth,  for  a  state  organiza- 
tion, in  order  to  send  out  piratical  expeditions  on  the  sea. 
The  justification  of  these  remarks  is  to  be  found  in  the  im- 
portant distinction  already  explained  (§  38)  between  contracts 


S6  POLITICAL   SCIENCE. 

which  are  in  their  general  nature  indefinite,  and  may  be  de- 
fined by  the  terms  used  in  each  case,  and  contracts  which  for 
some  reason  have  a  definite,  unalterable  form.  Marriage,  like 
the  state,  belongs  to  the  latter  species. 

§40. 
This  engagement  implies  power  to  make  the  engagement 

obstacles  to  mar-  anc*  to  enter  into  the  state  of  marriage,  and  is 
an  act  of  free  consent.  If  either  of  the  parties 
is,  according  to  the  jural  ordinances  of  the  place — wise  or  un- 
wise— not  sui  juris,  he  or  she  cannot  enter  into  the  state  with- 
out leave  of  the  parent  or  guardian  ;  and,  on  the  other  hand, 
it  is  flagitious  to  force  a  child  or  ward  into  consent  without 
his  or  her  own  will  confirming  it.  The  case  may  here  be  put 
of  a  prior  engagement  which  is  now  broken  off,  and  it  may 
be  asked  whether  this  is  an  absolute  impediment,  even  if 
made  in  a  solemn  manner.  The  answer  is  that,  jurally  speak- 
ing, to  break  off  an  engagement  is  a  violation  of  obligation 
which  gives  a  right  to  an  injured  party  to  seek  for  a  remedy ; 
but  that  in  the  intercourse  of  life  so  many  cases  of  hasty  en- 
gagements occur,  made  perhaps  after  strong  solicitation  by  a 
young  person  of  feeble  will,  that  it  would  be  a  great  evil  to 
force  such  a  pledge  to  its  fulfilment,  especially  after  new  reve- 
lations of  character,  and  still  more  perilous  to  make  it  an  ob- 
stacle in  the  way  of  union  with  another. 

The  marriage  engagement  again  implies  that  there  are  no 
other  impediments  in  the  way  of  being  married,  such  that  the 
law  of  morality  deduced  from  the  idea  of  marriage,  or  the  law 
of  the  state  confirming  that  law  pronounces  them  to  be  weighty. 
In  stricter  language,  the  impediments  may  be  such  as  to  make 
a  marriage  void  or  to  make  it  voidable.  In  the  latter  case,  if 
known,  they  are  good  ground  of  breaking -off  the  contract  be- 
fore its  consummation.  If  concealed  purposely  by  one  of  the 
parties,  in  order  that  the  decisive  step  may  be  taken,  they 
furnish  ground  for  a  sort  of  divorce  of  which  we  shall  presently 
speak.  If  there  are  real  obstacles,  and  yet  unknown  to  the 
party  in  whose  case  they  exist,  the  other  may  before  marriage. 


PARTICULAR   RIGHTS.  87 

as  after,  sue  for  a  divorce.  But,  on  the  other  hand,  a  party- 
injured  by  intention  or  ignorantly  may  waive  the  right  to 
this  remedy  and  live  with  the  other. 

One  such  case  is  a  physical  condition  which  makes  it  im- 
possible to  have  children,  provided  it  existed  before  marriage. 
If  supervenient,  it  ought  to  have  no  effect  in  sundering  the 
tie.  And  this  exception  holds  good  only  for  those  who 
marry  in  the  years  of  life  when  to  have  children  is  possible. 

§41. 

There  are  again  impediments   of  such  a  kind  as  to  render 
a  marriage  void  altogether.     One  class  of  these 

Prohibited  degrees. 

is  prohibited  degrees.  As  children  grow  up  in 
the  family  it  is  of  the  highest  importance  that  reserve  and  a 
kind  of  sacred  honor  should  be  maintained  in  the  intercourse 
of  the  boys  and  girls,  because  otherwise  what  nearly  all  men 
and  all  law  hold  to  be  frightful  crimes  might  exist.  The 
horror  of  incest  is  necessary  for  preserving  the  purity  of  the 
world.  It  is  therefore  worthy  of  notice  that  if  the  human 
race  sprung  from  one  pair,  their  children  must  at  first  have 
married  each  other.  This,  however,  is  not  perhaps  more 
strange  than  that  at  a  certain  time  of  life  the  feeling  of  mod- 
esty arising  in  the  girl  serves  as  a  moral  protection  against 
evil.  Yet  examples  are  not  wanting  of  marriage  with  sisters 
in  the  early  history  of  mankind,  as  Abraham's  wife  was  his 
half-sister,  a  thing  forbidden  by  the  Mosaic  law  ;  and  this  ap- 
pears to  have  been  not  only  practised  among  Egyptians  and 
the  Persians  (as  Cambyses  had  for  his  wives  his  sister  Atossa 
and  another  sister),  but  may  have  been  favored  by  their  reli- 
gion.* The  few  other  examples  of  it  that  have  been  gathered 
out  of  the  history  of  the  more  civilized  nations  were  sporadic 
cases,  not  showing  the  usage  to  be  general,  and  especially 

*Artaxerxes  Mnemon  went  still  farther,  and  had  two  daughters 
among  his  wives.  From  Herodot,  iii.,  31,  it  appears  that  the  act  of 
Cambyses  was  contrary  to  Persian  usage.  Strabo,  however,  xv.,  p. 
735,  imputes  incest  with  mothers  to  the  Magi,  and  others  charge  it 
on  the  Persians.      (Duncker,  Gesch.,  ii.,  549,  ed.  3). 


88  POLITICAL   SCIENCE. 

drawn  from  the  customs  of  licentious  dynasties.  At  Athens 
a  legal  marriage  existed  between  a  brother  and  sister  who  had 
not  the  same  mother.  (Demosth.  c.  Eubulid.,  §  20,  p.  1305.) 
But  the  feeling  expressed  by  Plato  (Laws,  viii.,  p.  838  C), 
must  have  been  shared  by  his  countrymen.  He  speaks  of 
the  unwritten  law  which  deters  from  such  things  so  effectually 
that  scarcely  the  desire  at  all  enters  the  minds  of  the  greater 
part  of  men.  "  A  little  word,"  he  adds,  "  extinguishes  all 
such  pleasures — the  word  that  they  are  by  no  means  accord- 
ing to  divine  law,  but  are  hated  of  God  and  the  basest  of  base 
things."  Nothing  could  more  clearly  show  how  the  better 
Greeks  felt  towards  crimes  of  this  class  than  the  horror  of 
CEdipus,  in  the  drama  of  Sophocles,  when  led  into  incest  by 
mistake. 

Besides  the  moral,  almost  religious  recoil  against  marriage 
within  the  closest  degrees,  whether  in  the  ascending,  descend- 
ing, or  collateral  line,  the  argument  urged  by  Augustin  is 
a  strong  one  against  it,  that  it  confines  the  affections  of  life 
within  a  narrow  circle  instead  of  spreading  them  abroad,  and 
so  binding  men  together  by  various  lines  crossing  one  an- 
other. But  there  is  a  reason  also  for  the  prohibition  of  mar- 
riage within  certain  degrees  of  near  kindred  in  a  physiological 
law  which  is  of  wide  extent.  In  regard  to  fallow  deer  and 
all  domestic  animals,  it  seems  to  be  an  admitted  fact  that 
"  les  accouplemens  consanguins  ne  reussissent  pas  ou  reus- 
sissent  mal ;  et  si  Ton  y  persiste,  espece,  race,  sante,  fecon- 
dite,  viabilite,  tout  s'eteint."  (Dr.  Prosper  Lucas,  cited  by  H. 
W.  J.  Thiersch,  d.  Verbotd.  Ehe,  p.  9).  The  same  physician 
adds  that  aristocracies,  seeking  to  recruit  themselves  within 
their  own  circle,  become  extinct,  and  often  fall  into  derange- 
ment and  imbecility.  An  analogous  law  prevails,  it  has  been 
found  in  recent  times,  in  the  vegetable  world.  Not  only  is 
it  important  to  change  the  seed  in  order  to  improve  the  crop, 
but  nature  performs  the  work  of  bringing  the  pollen  from  one 
flower  or  plant  to  another  by  the  help  of  insects,  and  this  on 
a  large  scale,  so  that  the  animal  is  contributing  to  the  perfec- 
tion of  the  vegetable,  while  seeking  a   supply  for   its   own 


PARTICULAR   RIGHTS.  89 

wants.  The  evil  for  the  human  race  of  marriage  between 
near  relations  has  long  been  known.  In  a  letter  imputed  to 
Pope  Gregory  I.  the  remark  is  made  that  Roman  law  allowed 
own  cousins  to  marry,  but  it  is  added,  "  experimento  didici- 
mus  ex  tali  conjugio  sobolem  non  posse  succrescere."  * 

It  may  be  laid  down  that  marriage  between  relatives  in  the 
first  degree,  whether  of  whole  or  half  blood,  and  between 
those  brought  into  a  similar  degree  by  marriage,  and  between 
near  relatives  in  the  ascending  and  descending  line,  are  unnat- 
ural and  perilous  to  society,  because  all  such  are  brought  into 
the  closest  family  ties.  But  how  far  shall  the  prohibition  ex- 
tend, founded  as  it  is  on  moral  feeling  and  a  certain  "  horror," 
as  well  as  on  considerations  of  expediency  of  the  highest  im- 
portance. Do  the  interests  of  society  demand  the  prohibition 
to  be  extended  farther  than  between  members  of  the  imme- 
diate family — to  cousins,  for  instance,  to  a  wife's  sister,  and 
so  on  ?  The  reasons  for  it  exist  nowhere  with  such  strength 
as  among  near  relatives  of  the  same  blood  and  living  together 
in  closest  intimacy  from  youth.  It  is  very  doubtful  whether 
legislation  ought  to  go  much  beyond  the  natural  household 
in  its  prohibition. 

The  Roman  law  allowed  first  cousins  to  marry,  and  when 
the  Emperor  Claudius  wished  to  marry  his  brother's  daugh- 
ter, Agrippina,  a  law  was  made  allowing  marriage  with  a 
brother's  daughter  only,  while  marriage  with  a  sister's 
daughter  still  remained  unlawful.  The  provisions  of  the 
canon  law  prohibiting  marriage  between  sixth  cousins  seem 
utterly  unreasonable,  and  indeed,  the  great  Pope,  Innocent 
III.,  showed  that  he  felt  a  larger  liberty  to  be  expedient. 
Still  more  unreasonable,  and  founded  on  no  correct  views  of 
marriage,  was  the  extension  of  the  old  canonical  prohibition 
in  the  Greek  church  to  those  whose  relatives  were  allied  by 
marriage.  As  for  the  question  of  the  marriage  of  a  man  with 
his  deceased  wife's  sister,  which  would  be  quite  against  the 
rules  of  the  old  church,  there  is  a  difference  of  opinion  and  of 

*  Comp.  "  Divorce  and  divorce  legislation,"  by  the  author  of  this 
work,  ed.  2,  p.  121.     (New  York,  1882.) 


90  POLITICAL   SCIENCE. 

legislation  among  Protestants.  But  this  connection  is  forbid- 
den by  no  law  of  the  Jewish  Scriptures,  for  the  passage  in 
Levit.  xviii.,  iS,  applies  to  the  contemporaneous  marriage  of 
two  sisters  to  one  man  ;  and  the  jus  leviratus,  then  allowed, 
goes  much  farther  than  such  a  union.  Moreover,  it  is  often 
a  blessing  for  children  to  have  a  female  relative  who  has  a 
natural  attachment  for  them  become  their  responsible  guar- 
dian, and  there  is  then  less  danger  of  division  in  a  family  than 
where  a  stranger  takes  this  place. 

§42. 

The  subject  of  primitive  degrees  brings  us  to  the  question 
much  discussed  of  late,  but  which  we  must  dis- 

Primitive  marriage.  .  . 

miss  with  a  brief  notice,  What  was  marriage, 
as  understood  by  primeval  man  ?  It  has  been  held  that,  as 
property  in  the  early  communities  was  held  in  common,  so  in 
the  same  forms  of  life  there  was  a  promiscuous  union  of  men 
and  women,  and  the  children  were  the  children  of  the  com- 
munity. This  is  argued,  not  from  instances  of  such  promis- 
cuity so  much  as  from  practices  surviving  through  untold 
ages  the  decay  of  the  original  form  of  society.  On  the 
ground  of  these  it  is  claimed  that  marriage  as  now  understood 
in  the  highest  races  was  once  unknown.* 

*  This  inquiry  was  started,  we  believe,  by  Bachofen,  of  Basel,  in 
his  strange  book  entitled  "  Mutterrecht  "  (Stuttgart,  1861),  in  ref- 
erence to  succession  through  the  mother.  J.  F.  McLennan  followed 
in  his  important  book  on  primitive  marriage  (Kdinb.,  1S65),  in 
which  the  practice  of  bride-stealing  and  exogamy  are  the  main  points 
of  enquiry.  A  second  edition,  which  has  recently  appeared  (Loud., 
1876),  contains  discussions  of  other  points  and  reviews  of  the  opin- 
ions or  theories  of  other  writers.  Mr.  L.  H.  Morgan,  of  Rochester, 
N.  Y.,  approached  the  subject  through  the  terms  which  denoted  con- 
sanguinity and  affinity  in  several  races.  (Smithsonian  Contrib.,  xvii., 
1870.)  Sir  John  Lubbock  (Origin  of  Civilization,  1876)  examines 
this  question  of  early  history  with  a  tendency  to  find  an  ascent  of 
man  from  the  lowest  sensuality.  M.  A.  Giraud-Teulon  (in  les  ori- 
gines  de  la  famille,  Geneva,  1874)  gives  a  clear  criticism  of  the  lead- 
ing facts  and  criticisms.  Mr.  Herbert  Spencer  (in  the  Popular 
Science  Monthly  for  Jan.,   1877,  in  an  article  entitled  on  theories 


PARTICULAR   RIGHTS.  9 1 

Herodotus  found  among  the  Lycians  (i.,  §  173)  what 
seemed  to  him  a  unique  usage,  that  children  there  took  their 
mother's  and  not  their  father's  name.  They  adopted  the 
rule  "  partus  sequitur  ventrem  "  to  the  extent  of  depriving 
the  children  of  a  principal  man,  by  a  foreign  woman  or  a  con- 
cubine, of  political  rights.  This  usage,  which  seemed  to  He- 
rodotus so  strange,  is  found  all  over  the  world  at  the  present 
day,  in  the  form  that  children  belong  to  their  mother  and  her 
family  ;  and  has  been  accounted  for  on  the  assumption  of 
promiscuous  unions,  upon  the  ground  that  mothers  would 
know  their  own  children,  their  mothers  and  her  children,  and 
so  on  in  the  female  line,  while  in  our  sense  of  the  term  they 
themselves  had  no  husbands.*  Marriage  with  sisters  pre- 
vailed in  a  number  of  tribes  belonging  to  different  races, 
especially  in  their  royal  families,  and  appears  in  a  number  of 
mythologies.  Thus,  Zeus  and  Hera,  Osiris  and  Isis,  the  sun 
and  moon — divinities  of  the  Peruvians,  etc.,  were  brothers 
and  sisters. 

Polyandry,  also,  is  found  even  now  in  Thibet,  among  the 
Todas  and  other  tribes  of  India,  in  the  Marquesas  Islands, 
etc.  ;  and  Caesar  found  it  in  Britain.  Nay,  among  the  Spar- 
tans it  was  known.  For  the  most  part,  the  men  have  been 
brothers  with  a  common  property. 

Further,  the  community-marriage  being  assumed,  all  the 
names  of  nearest  kindred,  as  father,  mother,  sister,  brother, 
grand-parents,  might  denote  a  class  of  persons  ;  the  father, 
for  instance,  might  not  be  distinguishable  by  the  name  of 
his  degree  of  kindred  from  uncles  of  various  sorts,  sons  of  a 

of  primitive  marriage,)  discusses  McLennan' s  theory  and  rejects  it, 
as  it  respects  the  important  points  of  exogamy  and  bride-stealing. 
A.  H.  Post  unites  inquiries  into  communities  by  blood  and  primitive 
marriage  in  his  Geschlechts-genossenschaft  u.  d.  Enstehung  der  Ehe. 
(Oldenburg,  1875). 

*  With  this  is  to  be  brought  into  connection  the  fact  that  in  Southern 
India  extensively,  in  parts  of  Siberia,  in  Polynesia,  sisters'  children 
are  heirs  of  a  brother's  property  in  preference  to  his  own  children. 
Comp.  what  Tacitus  (de  mor.  Germ.,  §  20)  says  of  the  esteem  of  a 
maternal  uncle  for  his  sister's  children  in  that  nation. 


92  POLITICAL   SCIENCE. 

grandfather's  brother  or  grandmother's  brother  or  sister,  etc. 
And  this  poverty  of  words  descriptive  of  a  number  of  relatives 
might  pass  down  into  the  period  of  more  regular  marriage. 

The  practice  of  taking  a  mother's  name,  of  belonging  to 
her  and  not  to  the  father,  will  meet  us  again.  We  observe 
on  the  other  points  (i),  that  incest  is  now  forbidden  almost 
everywhere  in  the  world.  Where  practised,  purity  of  blood, 
as  in  royal  families,  or  considerations  of  property,  as  in  mar- 
riages at  Athens  among  half  brothers  with  their  sisters  by 
another  father,  might  generally  account  for  it.  There  seems 
to  have  been  a  feeling  that  the  closest  union  came  through 
the  mother  ;  and  thus  children  of  the  same  mother  could  not 
intermarry,  while  those  of  the  same  father  could.  Polygamy 
aided  this  kind  of  incest. 

(2).  The  mythological  conceptions  do  not  represent  what  is 
right  for  men.  Thus,  the  thefts  of  Hermes,  and  the  adulte- 
ries of  many  gods, — which,  by  the  way,  presuppose  regular, 
permanent  marriage, — do  not  show  that  the  moral  sense  of 
the  tribe  justified  such  things,  but  only  that  it  was  not  strong 
enough  to  condemn  them  in  fables.  Such  unions  as  those  of 
Hera  and  Zeus,  of  moon  goddesses  and  sun  gods  are  inevita- 
ble, if  mythology  would  express  the  close  connection  between 
the  dual  objects  of  nature.  Moreover,  the  mythology  must 
have  been  formed  after  this  supposed  promiscuous  marriage 
had  disappeared  from  the  world. 

(3).  Polyandry  is  due  to  poverty  and  to  infanticide  growing 
out  of  poverty,  and  cannot  be  said  to  be  a  general  practice, 
still  less  one  growing  out  of  primeval  usage.  This  is  the  ex- 
planation of  it  in  Thibet,  where  the  females  are  sent  into 
Buddhist  convents,  and  in  the  cases  where  it  was  practised  at 
Sparta.  (Polyb.  xii.,  6.)  Among  the  Todas,  now  a  very 
small  polyandrist  tribe,  infanticide  of  female  children  has 
been  common. 

As  the  application  of  the  names  of  father,  brother,  etc.,  to 
a  class  of  relatives  does  not  represent  the  existing  state  of 
things  in  the  Hawaiian  Islands,  and  as  the  names  for  mother, 
for  sister  and  brother  by  her,  on  any  supposition,  ought  to 


PARTICULAR   RIGHTS.  93 

have  had  a  restricted  sense,  the  usage  of  speech  to  which  we 
have  referred  is  rather  a  proof  of  poverty  in  the  language  than 
of  any  special  early  customs.  We  have  a  similar  poverty  in 
the  use  of  our  words  uncle,  aunt,  merely  because  the  need  of 
new  words  of  more  exact  sense  has  not  been  felt. 

(4).  There  is  a  class  of  facts  of  great  interest  bearing  on 
primitive  marriage  which  are  not  at  all  easy  of  explanation.  In 
quite  a  number  of  races  or  of  tribes  marriage  is  allowed  be- 
tween members  of  the  same  clan  or  tribe  only  ;  while  in  others, 
marriage  between  members  o(  the  same  clan  or  even  of  those 
who  have  the  same  name,  is  forbidden.*  In  the  latter,  to  a 
considerable  extent,  the  child  is  reckoned  to  belong  to  the 
mother's  kindred.  This  is  called  now  exogamy,  and  the  wife, 
all  over  the  world  where  this  was  in  use,  was  obtained  by 
capture.  Indeed,  bride-stealing  has  been  far  more  general 
than  exogamy.  Thus  it  was  practised  in  early  Greece  ;  to  it 
the  stealing  of  the  Sabine  women  points  ;  and  the  rape  of 
Proserpine  by  Pluto  is  an  old  instance  from  mythology.  Ex- 
ogamy, as  well  as  its  opposite  (now  called  endogamy) ,  points 
to  a  later  era  than  the  primitive  communities — to  a  time  when 
marriage  had  its  fixed  rules  and  was  considered  a  relation  be- 
tween two  persons.  Mr.  McLennan  accounts  for  both  exog- 
amy and  bride-stealing  by  infanticide  arising  from  poverty, 
which  led  to  the  capturing  of  women  from  another  tribe,  as 
well  as  to  polyandry  within  the  tribe.  If  poverty  caused 
this,  it  ought  to  be  a  common  cause  in  the  neighboring  clans 
also  ;  but,  as  Mr.  McLennan  puts  it,  there  ought  to  be  a  plenty 
of  marriageable  young  women  in  one  tribe  and  none  in  every 
next  one.  Mr.  Herbert  Spencer  cogently  asks  (see  note 
above)  why  hostile  tribes  should  rear  their  daughters  as 
wives  for  their  foes.     Mr.  McLennan  finds  also  in  this  exoe- 


*  It  was  required  in  the  laws  of  Manu  of  the  Dwidja,  or  twice  born 
person  (who  was  to  belong  to  one  of  the  three  higher  classes  or 
castes),  that  his  wife  should  not  be  a  descendant  of  one  of  his  ances- 
tors, maternal  or  paternal,  to  the  sixth  degree,  and  should  not  pertain 
to  the  family  of  his  father  or  mother  by  a  common  origin  proved  by 
identity  of  family  name.     ii.  6,  Deslongchamps'  trans. 


94  POLITICAL   SCIENCE. 

amy  "  the  primitive  instinct  of  the  race  against  marriage  be- 
tween members  of  the  same  stock."  If  so,  the  resort  to  in- 
fanticide for  explaining  it  is  needless,  and  it  is  hard  to  see  how 
the  asserted  original  promiscuity  could  ever  have  existed. 

Bride-stealing,  as  Mr.  Spencer  suggests,  may  have  sprung 
from  the  raids  of  neighboring  tribes  who  would  carry  off 
everything  of  value  they  could  find,  especially  young  women 
who  could  serve  for  wives  or  slaves,  or  both.  And  he  thinks 
that  the  successful  raid,  by  making  a  warrior  distinguished, 
rendered  the  stealing  of  a  wife  a  required  proof  of  a  fitness  to 
have  one.  Next  would  follow  a  peremptory  law  of  exogamy. 
But  is  it  not  strange  that  foreign  women,  in  spite  of  the  natu- 
ral jealousy  of  the  native  women,  should  take  such  a  place 
that  at  length  all  the  young  men  should  be  required  to  get 
their  wives  from  another  sept  or  totem  ?  Other  causes  may 
be  conceived  of  why  this  exogamy  became  necessary  in 
many  tribes.  One  might  be  the  feeling,  as  yet  vague,  that 
there  was  something  unhallowed  in  marrying  a  near  relative. 
Another  might  be  the  greater  probability  of  peace  between 
the  tribes  ;  and  possibly  another  the  discovery  from  experi- 
ence that  such  marriages  were  most  fruitful.  Bride-stealing 
may  be  explained  by  the  unwillingness  or  inability  of  the 
young  men  to  pay  the  price  almost  universally  demanded  by 
the  father  of  the  girl ;  and  it  might  continue  as  a  ceremony 
after  the  original  sense  of  the  practice  was  lost.  This  ex- 
planation, however,  would  require  the  previous  establishment 
of  separate  property. 

Many  tribes  practise  endogamy  ;  among  them  some  that  be- 
long to  the  same  race  and  use  the  same  language  with  others 
where  exogamy  prevails.  It  seems  most  natural  that  marry- 
ing within  the  tribe  should  have  been  the  earliest  usage,  for 
objects  of  worship,  religious  rites,  fear  of  strangers  on  the 
part  of  females,  would  be  so  many  arguments  against  the  op- 
posite practice.  Mr.  McLennan's  theory  that  exogamy  was 
prior  in  time  to  marriage  within  the  tribe,  and  his  view  of 
the  stages  up  to  the  usages  of  civilized  life  is  ingenious  (pp. 
183-210,  ed.  2),  but  I  cannot  persuade  myself  either  that  there 


PARTICULAR   RIGHTS.  95 

was  any  one  law  of  progress  everywhere  and  in  all  races,  or 
that  finding  a  wife  at  home  should  have  been  posterior  by 
long  stages  to  getting  her  from  abroad.  Whatever  custom 
prevailed  at  first  would  be  modified,  and  might  be  differently 
modified  where  village  communities  and  separate  abodes  be- 
gan to  succeed  to  joint  families.  Until  the  connection  of 
the  stages,  especially  until  the  practice  of  exogamy,  is  bet- 
ter cleared  up,  we  must  delay  forming  a  judgment  with  M. 
Giraud-Teulon,  who,  at  the  end  of  his  very  good  account  of 
this  subject,  declares  "  that  he  suspends  his  conclusion  until 
he  gains  further  light." 

There  is  no  doubt,  however,  that,  whether  by  degradation 
or  by  never  rising  above  a  primitive  bestial  condition,  many 
communities  of  mankind  even  at  the  present  day  show  the 
lowest  type  of  human  nature  in  regard  to  sexual  unions.  If 
they  are  representatives  of  man  in  his  first  estate,  they  put  in 
a  striking  light  the  progress  of  humanity  in  regard  to  moral 
ideas,  and  point  to  the  possibility  of  a  higher  progress.  If 
they  represent  man  in  a  degraded  condition  they  show  how 
uncivilizing  and  what  an  obstacle  to  progress  sensuality  is. 
In  either  case  we  must  regard  man  as  being  true  to  his  nature 
and  destination,  when  he  rises  in  his  conception  of  marriage, 
his  respect  for  women,  his  feeling  of  the  sanctity  of  the 
household. 

§43- 
Polygamy  is  contrary  to  nature  and  an  abuse  of  nature,  if 
the  true  idea  of  marriage  implies  a  surrender  of 

Polygamy.  ox 

the  personality  of  each  of  the  married  partners 
to  the  other,  or,  as  the  earliest  pages  of  the  Bible  express  it, 
if  "  they  twain  shall  become  one  flesh."  Marriage,  therefore, 
can  only  be  between  one  man  and  one  woman,  because  the 
nature  of  the  union,  of  its  interests,  its  affections,  its  objects, 
is  such  as  to  exclude  any  contemporaneous  union  of  the  same 
kind.  How  can  a  person  who  is  one  flesh  with  another  be- 
come one  flesh  with  a  third  person  ?  How  can  one  who  leaves 
the  closest  relatives  of  his  earliest  years,  who  "leaves  father 


96  POLITICAL   SCIENCE. 

and  mother  "  in  order  to  cleave  to  his  wife,  have  any  other 
similar  relation  which  compares  with  this  in  closeness  ? 

And  yet  in  all  the  races  of  men,  except  the  Indo-European, 
has  polygamy  been  allowed  and  practised  from  time  imme- 
morial ;  nay,  in  some  of  the  members  of  that  race,  among  the 
Indians,  Persians,  Slavonians,  Celts,  among  these  latter,  to- 
gether with  polyandry  (Caesar,  B.  G. ,  v.,  14)  and  in  the  prac- 
tices of  the  German  aristocracy  (Tac.  de  mor.  Ger.  18,  Cses. 
u.  s.,  i.,  53),  it  was  either  a  primeval  institution  or  had  super- 
seded an  earlier  monogamy.  How  came  it  to  pass  that  a 
usage,  so  revolting  to  our  sense  of  morality,  and  once  per- 
vading the  world  excepting  two  or  three  gifted  nations,  should 
not  have  been  seen  in  all  its  deformity  by  at  least  the  higher 
races  of  mankind  ?  One  cause  may  have  been  that  while 
the  relations  of  man  to  man  in  business  were  looked  at  on 
the  side  of  right,  the  marriage  relations  were  looked  at  on  the 
physical  side  ;  the  members  of  the  family  were  not  contem- 
plated in  their  jural  relations,  but  as  a  whole,  under  a  head 
who  had  powers  like  an  owner  of  property  and  authority  like 
an  officer  of  state  within  his  little  dominion.  To  this  the  im- 
pulse of  lust  is  to  be  added,  together  with  the  consideration 
which  the  polygamist  enjoys,  where  this  usage  is  endured,  as 
a  person  able  to  support  a  large  household.  Even  the  wives 
of  such  a  one  may  like  the  distinction  of  belonging  to  a  man 
of  rank.  Add  to  this  that  in  most  of  the  passive  races  the 
wife  is  a  slave  connected  with  the  house  master  and  not  likely 
to  run  away.  In  fact,  polygamy  may  have  been  helped  to 
spread  by  slavery,  and  vice  versa.  Polygamy  imbrutes  the 
woman,  makes  her  a  thrall  and  an  instrument  of  animal  de- 
sire, and  gives  prominence  in  the  family  to  that  which  is  most 
animal.  How  are  families  to  rise  up  towards  the  idea  of  true 
family  life  in  such  a  condition  ?  A  reform  cannot  spring  up 
from  within. 

Thus  we  come  to  the  essential  moral  evils  of  polygamy 
which  show  it  to  be  in  a  true  sense  unnatural.  Affection  is 
scattered  and  lost.  Appetite  reigns  in  the  man.  The  wives 
are  rivals  and  jealous,  so  that  in  some  countries  they  have 


PARTICULAR   RIGHTS.  97 

separate  huts  or  kraals.  The  children  side  with  the  mothers. 
Equality  between  the  sexes  is  impossible.  Polygamy  requires 
a  despotical  power  at  the  head,  and  seems  to  favor  the 
despotical  form  necessary  in  the  state. 

It  may  be  added,  as  nature's  testimony  against  polygamy, 
that  the  number  of  children  who  grow  up  to  a  marriageable 
age  in  the  two  sexes  is  about  equal.  Among  children  born 
in  countries  where  statistics  give  us  reliable  information  the 
males  exceed  the  females  by  between  four  and  six  per  cent; 
the  sexes  approach,  before  they  reach  the  age  of  seventeen, 
to  an  equality  of  numbers,  and  after  that,  until  about  forty- 
five,  the  females  slightly  preponderate.  Beyond  the  age  of 
forty-five,  there  is  a  still  larger  excess  of  women.  Thus 
we  have  two  interesting  facts  :  that  the  number  of  those  who 
are  intended  for  each  other  is  in  the  earlier  years  of  life  nearly 
equal,  and  by  the  greater  waste  in  the  male  sex  becomes  still 
more  so  ;  and  that  in  the  years  when  women  bear  children  a 
small  excess  appears  in  their  number,  as  if  to  allow  husbands 
a  larger  range  of  years  than  wives.  These  general  facts  are 
slightly  modified  in  different  countries.  In  Prussia,  where 
105  or  106  boys  are  born  to  100  girls,  the  ratio  by  the  cen- 
sus of  1846  is  that  of  100  living  males  to  100.241  females,  and 
the  ratio  for  the  ages  between  seventeen  and  forty-five  is 
almost  precisely  the  same.  In  Sweden,  Russia,  and  the 
British  Islands  there  is  a  greater  excess  of  females,  whose 
numbers  to  those  of  the  men  are  as  107.64,  105,  and  104.93  to 
100.  But,  at  least  in  Great  Britain,  the  absences  of  men  all 
over  the  world  would  doubtless  bring  the  number  of  males 
nearer  to  equality.  There  seems  some  reason  to  believe  that 
in  more  southern  countries  also  there  is  an  excess  of  males ; 
thus  the  ratio  in  Italy  of  males  to  females  is  as  100  to  98.96. 
By  the  census  of  the  United  States  taken  in  1870,  the  whole 
number  of  males  was  19,493,465,  of  females,  19,064,806, 
which  is  too  large  a  ratio  on  the  male  side,  and  is  instantly 
accounted  for  by  the  relative  numbers  of  foreign  males  and 
females,  3,006,943,  and  2,560,286.  The  difference  here, 
446,657,  more  than  balances  the  difference  of  the  totals  428,- 
7 


98  POLITICAL   SCIENCE. 

659,  and  must  be  accounted  for  by  the  greater  number  of 
male  emigrants.  In  the  native  white  population  the  ratio  of 
males  to  females  is  as  100.55  to  100,  and  among  the  native 
blacks  as  96  to  100  (nearly)  ;  where  perhaps  but  for  mortal- 
ity in  the  late  war  the  ratio  would  be  in  the  case  of  both 
whites  and  blacks  slightly  nearer  to  equality. 

It  has  been  said,  however,  that  in  polygamous  countries 
there  is  a  considerable  excess  of  females  born  into  the  world. 
It  may  be  so,  but  I  have  seen  no  good  grounds  for  the  opin- 
ion. In  India,  males  are  decidedly  in  excess,  but  this  may 
be  due  to  the  prevalence  of  the  murder  of  female  infants.  In 
four  Zulu  tribes  Dr.  Colenso  found  988  men,  1,812  wives,  352 
widows,  1,435  girls.  1.720  boys,  in  all,  2,708  males  and  3,599 
females,  and  from  such  data  he  argues  that  the  female  sex 
considerably  preponderates  in  that  part  of  Africa.  But  the 
main  point,  how  many  of  each  sex  come  into  the  world,  is 
decided  by  his  own  figures  against  him.  His  1,720  boys  and 
1 ,435  girls,  who  all  ought  to  be  natives,  are  in  the  ratio  of  100 
to  83.5  nearly,  showing,  in  fact,  too  great  a  proportion  on  the 
side  of  the  males,  and  needing  to  be  accounted  for  by  the  sale 
of  girls  or  their  early  marriage  ;  while  the  great  number  of 
wives  is  explainable  by  not  killing  the  women  in  wars  between 
the  tribes  when  the  men  are  murdered.*  The  truth  is  that 
in  most  polygamous  countries  the  husbands  with  more  than 
one  wife  form  but  a  small  part  of  the  number  of  those  who 
are  married,  while  licentiousness  must  be  promoted  among 
the  men  who  are  unable  to  have  a  plurality  of  wives  by  the 
unwillingness  to  enter  the  family  state  on  the  plebeian  plan 
of  monogamy. 

§  44- 
The  duties  and  claims  on  each  other  of  a  married  pair  must 
Rights  an,i  obii-  be  left  to  the  science  of  ethics.    (1).  The  rights,  as 

gallons  of  a  married     .  ,    ,  ,  i  i  r 

pair.  interpreted  by  the  usages  and  laws  of  many  even 

of  the  most  civilized  nations,  have  been  thought  to  include  a 

*  See  the  author's  review  of  Colenso    and    Grout  on  polygamy, 
in  the  New  Enghvtder,  Vol.  xvi.,  p.  407  onw. 


PARTICULAR   RIGHTS.  99 

certain  dominion  on  the  part  of  the  man.  He  is  the  house- 
master, the  protector  against  outward  force,  the  centre  of 
jural  relations.  This  is  so  far  true  that  superior  strength  and 
knowledge  of  business  fit  him  to  manage  family  affairs,  and 
there  can,  in  most  jural  relations,  be  but  one  manager.  He, 
and  not  the  wife,  is  thus  responsible,  which  is  certainly  for 
her  protection.  But  he  cannot  rightfully  demand  that  the 
wife's  and  the  family's  interests  shall  be  sacrificed  to  his. 
He  is  the  head  on  their  account,  and  society  is  bound  in  its 
laws  to  take  this  position,  when  it  acts  over  him  as  upper 
protector  of  his  family.  We  cannot  here  enter  into  the  details 
of  arrangements  needed  against  the  head  of  the  family,  as 
when  he  is  wasting  his  goods  in  vicious  pleasures,  when  he  is 
cruel,  when  his  wife  had  property  of  her  own  before  she  en- 
tered his  house,  or  had  it  afterwards  bequeathed  to  her, — 
where  a  long  array  of  laws  on  the  principle  of  separate  or  of 
joint  property  would  show  the  difficulties  felt  in  civilized  lands 
of  so  adjusting  rights  as  at  once  to  give  protection  to  the 
feebler,  without  dividing  the  house,  and  to  leave  the  opera- 
tions of -business  unembarrassed.  These  questions  arise  main- 
ly in  highly  civilized  lands,  and  it  may  be  mentioned  as  a 
characteristic  of  such  lands  that  their  laws  shape  them- 
selves almost  necessarily  more  and  more  in  favor  of  females. 

(2).  The  wife  has  a  right  to  a  support.  That  is,  her  part 
being  to  take  care  of  household  and  children,  the  husband  is 
bound  to  see  that  she  is  maintained  according  to  the  usage 
of  her  class,  so  far  as  it  lies  in  his  power,  and  according  to  the 
understanding  at  the  time  of  marriage.  They  are  partners 
who  divide  the  family  work  between  them.  In  savage  life 
the  wife  does  the  drudgery  even  in  planting  and  gathering 
crops.  She  hence  becomes  prematurely  old,  and  the  result 
is  a  degradation,  moral  and  physical,  of  the  children. 

(3).  They  are  reciprocally  bound  to  fidelity  in  all  that 
which  constitutes  their  union,  and  while  for  others  the  viola- 
tion of  sexual  purity  may  be  simply  an  offence  against  the 
laws  of  morality,  for  them  adultery  is  not  only  a  crime,  but 
the  highest  breach  of  obligation.      With  the  criminal  side  of 


IOO  POLITICAL   SCIENCE. 

this  wrong  we  now  have  nothing  to  do.  As  the  rights  of 
both  partners  in  marriage  are  equal,  both  can  violate  obliga- 
tion equally  ;  yet,  under  Roman  law,  the  technical  offence 
called  adult erium  could  exist  only  where  a  married  woman 
was  one  of  the  offenders.  The  husband  could  not  become 
obnoxious  to  this  charge  by  concubinage  or  intercourse  with 
an  unmarried  female.  The  evil  of  adultery,  as  a  violation  of 
right,  is  certainly  greater  in  general  for  the  wife  than  for  the 
husband,  both  because  it  may  be  connected  with  confusio 
sanguinis,  and  because  it  is  more  morally  offensive  on  her 
part,  just  as  the  moral  sense  revolts  more  at  polyandry  than 
at  polygamy.  Yet,  according  to  the  principle  of  substantial 
equality  which  prevails  from  the  commencement  of  marriage 
to  its  termination  by  death,  as  the  rights  of  the  parties  are 
equal,  so  their  obligations  and  their  violations  of  them  ought 
to  be  placed  on  common  ground. 

§  45- 
If,  then,  either  of  them  should  disregard  the  obligations  as 
well  as  duties  implied  in  the   idea  of  marriage, 

Divorce.  ,  ,  ,  .  .        . 

what  is  the  remedy,  or  rather,  what  is  the  natu- 
ral result,  for  there  is  no  remedy  ?  The  innocent  party  can- 
not, according  to  the  rules  of  justice,  be  expected  to  continue 
a  contract  which  has  been  broken  by  the  sin  and  shame  of 
another,  unless,  by  a  waiver  of  right  in  the  spirit  of  love  and 
of  Christian  self-sacrifice,  such  party  forgives  the  offence  and 
seeks  to  save  the  other.  But  is  not  marriage  indissoluble  ? 
Not  certainly  according  to  the  idea  of  marriage,  which,  al- 
though it  places  the  termination  of  the  state  out  of  the  power 
of  the  parties'  consent,  as  we  have  seen,  yet  does  not  involve 
that  it  shall  never  cease.  Adultery  is,  in  fact,  a  termination, 
as  ending  the  condition  in  which  they  were  one  flesh.  It  de- 
clares that  one  of  two  parties,  in  whom  another  had  a  prop- 
erty, lawlessly  transferred  that  property,  as  far  as  he  or  she 
is  concerned,  to  a  third  person.  It  also,  as  far  as  the  wife  is 
concerned  when  she  is  guilty  of  the  crime,  destroys  the  peace 
and  violates  the  idea  of  the  family,  by  making  it  uncertain  to 


PARTICULAR   RIGHTS.  IOI 

whom  a  child  belongs.  Hence,  the  worst  form  of  adultery, 
and  in  some  codes  the  only  form,  is  when  a  married  woman 
is  one  of  the  parties  to  such  intercourse. 

But  is  there  any  other  ground  for  divorce  besides  this  ? 
Natural  law,  the  rights  involved  in  the  case,  do  not  give  a 
definite  answer  ;  they  allow  divorce  in  one  case,  but  are  able 
to  fix  no  limit  for  the  wrongs  which  ought  to  justify  separa- 
tion, just  as  they  require  a  termination  of  the  minority  of  the 
child,  while  the  point  of  time  when  this  state  shall  end  must 
be  determined  by  positive  law.    Christ  allows  of  divorce  in  but 
one  case,  and  one  only;    the  apostle  Paul,  in  the  particular 
instance  of  a  marriage  where  one  of  two  heathens  has  left  the 
other,  seems  to  decide  that  the  other  is  released  from   obliga- 
tion.    Christ,  in  the  rule  that  he  has  laid  down  (Matt,  xix.,  8), 
meets  the  great  liberty  of  divorce  under  the  Mosaic  law  with 
the  declaration  that  a  civil  code  given  even  by  an   inspired 
law-giver  may  be  imperfect,  in  order  to  suit  the  character  of 
a  people  so  wedded  to  old  usages  as  to  be  unable  to  endure  a 
regulation    in    itself    desirable,  and   that,    according   to   the 
idea  of  marriage,  to  its   institution  "at  the  beginning,"  a 
stricter  law,  cutting  off  divorce  in  all  cases  but  one,  was  the 
proper  rule.     This  strict  rule,  then,  must  bind  Christian  be- 
lievers ;  but  does  it  bind  states  ?     So  far  as  I  can  see,  a  rule 
less  strict  may  be  found  necessary  in  civil  society  for  the  same 
reason  for  which  Moses  found  it  necessary.     A  state   may 
call  itself  a  Christian  state  without  following   the   path    of 
Christian  morality.     It  may  not  require  anything  forbidden 
by  Christianity,  but  it   may  forbear  to   enact   many  things 
which  Christianity  requires,  for  the  spheres  of  the  two  are 
different.     A  strict  rule  of  divorce,  however,  is  on  the  whole 
the  best  for  that  which  the  state  aims  at.     Granted  that  under 
a  strict  rule  some  might  commit  adultery  to  get  a  divorce  ; 
yet  (i)  the  facility  of  divorce  often  leads  a  married  pair  to 
quarrel  when  otherwise  they  would  be  forbearing  and  would 
preserve  their  union  ;  (2)  the  strict  rule  upholds  the  sanctity 
of  marriage,  and  testifies  in  favor  of  family  life  as  too  sacred 
to  be  overthrown  by  any  but  great  deviations  from   right, 


102  POLITICAL   SCIENCE. 

since  the  condition  of  marriage,  except  in  extreme  cases,  is  in- 
dissoluble. (3).  Facility  of  divorce  does  not  prevent  adul- 
tery, but  tends  to  multiply  the  cases  of  it  by  making  marriage 
seem  a  slight  thing.  Dion  Cassius  tells  us  (lxxvi.,  §  16)  that 
the  Emperor  Septimius  Severus  made  certain  laws  against 
adultery,  at  a  time  when  divorces  at  Rome  were  easily  pro- 
cured, and  that  he  himself,  when  Consul  under  Septimius, 
found  three  thousand  records  of  processes  for  this  crime.  (4). 
That  there  are  evils  attending  great  strictness  respecting  di- 
vorce is  admitted  ;  but  the  question  is  whether  there  would 
not  be  more  if  they  were  easily  granted.  (5).  Add  to  this 
that  a  divorce  law,  when  it  breaks  the  barriers  of  the  old 
Christian  rule,  grows  looser  and  looser  until  almost  anything 
becomes  a  ground  for  it.  Of  this  we  have  some  signal  exam- 
ples in  several  of  the  United  States.  That  this  must  attack 
the  morals  of  society  at  a  vital  point  is  evident.*  Divorce 
ought  not  to  preclude  the  innocent  party  from  marrying  again, 
for  there  is  no  reason  why  such  persons  should  be  stripped  of 
their  rights  through  the  fault  of  others  ;  but  the  guilty  party 
may  with  the  highest  justice  incur  that  disability. 

§46. 
The  feeling  in  uncivilized  tribes  to  this   day  generally  is 
that  the  children  are  the  property  of  parents, 

Rights  of  parents.     ....  ,,,  ^   .  .  .     . 

like  sheep  or  cattle.  I  his  appears  in  a  variety 
of  usages,  as  in  that  almost  universal  one  of  selling  the 
daughter  to  her  intended  husband  (although  here  a  right 
to  a  child's  labor  would  be  a  sufficient  explanation)  ;  in  the 
right  of  the  father  to  choose  whether  he  will  expose  the  infant 
or  raise  it  up — whence  the  words  tollere,  suscipere  infantem 
draw  their  meaning — and  in  the  willingness  of  Plato  and 
Aristotle  to  have  abortion  practised. f     It  seems,  however, 

*  See  the  author's  "  Essay  on  divorce  and  divorce  legislation,  with 
special  reference  to  the  United  States."     New  York,  ed.  2,  1882. 

f  Plato  (le  Rep.,  V.,  p.  461  C,  fidXicrra  ^.ev/Ar/S'  ei?  <£tos  e'x^epeii'  Kvrjfia 
fx-qhev.  Arist.  (Polit,  vii.,  14,  §  10),  seeks  to  limit  the  number  of  chil- 
dren, and  to  improve  the  breed.     Nothing  maimed  is  to  be  reared 


PARTICULAR   RIGHTS.  IO3 

that  the  Greek  humanity  revolted  against  abortion,  or  that 
over-population  was  not  dreaded  in  all  the  states  alike,  for  we 
have  evidence  that  somewhere  in  Greece  it  was  a  criminal 
offence.  (See  C.  F.  Hermann,  Gr.  Antiq.,  iii.,  §  II,  note  5.) 
The  Romans,  however,  carried  out  the  patria  potestas  and 
the  rights  of  the  house-master  most  remorselessly,  until  the 
new  humanity,  from  the  stoic  philosophers  and  perhaps  from 
Christian  morals,  changed  legislation.  The  power  of  the 
paterfamilias  involved  the  right  of  life  and  death  equally  over 
the  slave  and  the  child,  and  these  rights  were  not  terminated 
in  either  case  except  by  a  form  of  emancipation.  In  this 
form  the  triple  sale  of  the  son  and  then  his  liberation  by  the 
father  buying  him  made  his  freedom  complete.  On  the  other 
hand,  the  old  form  of  adoption  of  those  who  were  under  no 
one's  control,  known  as  abrogation,  brought  with  it  these 
powers  to  the  new  father,  as  appears  from  the  words  of  the 
old  formula  in  which  the  question  was  submitted  to  the  comi- 
tia  curiata  ;  "  utique  ei  (i.  e.,  the  father  by  adoption)  vita 
necisque  in  eum  potestas  siet,  uti  patri  endo  jilio  est."  Ac- 
cording to  this  strict  rule  the  son  could  have  no  property  of 
his  own  unless  by  permission,  and  remained  in  his  father's 
power  even  when  grown  up,  except  so  far  as  the  claims  of  the 
state  freed  him  from  control.  The  married  daughter  belonged 
to  two  families  ;  but  by  Roman  law,  the  husband's  father  did 
not  acquire  the  patria  potestas  over  her,  and  a  son's  children 

up.  If  law  does  not  forbid,  the  number  is  to  be  kept  down  by  ex- 
posure. Abortion,  also,  may  be  used  before  sensation  and  life  come 
on.  And  then,  as  if  to  excuse  himself  for  something  that  might  be 
thought  inhuman,  he  adds,  "  for  the  question  whether  it  be  according 
to  natural  right  and  piety  (oaiuv)  or  not,  must  be  decided  by  the  ex- 
istence of  sensation  and  life."  In  the  same  part  of  the  Politics  and 
in  the  Republic  there  are  abundant  illustrations  of  the  tyranny 
(over  the  individual)  which  these  two  greatest  of  Greek  philosophers 
would  allow  to  the  state.  The  due  succession,  without  over-popula- 
tion, of  a  healthy  race,  was  a  state  concern.  On  the  other  hand, 
Plato  (de  Leg.,  vi.,  p.  784  B.)  lays  it  down  that  not  to  have  children 
for  ten  years  after  marriage  would  be  a  reason  for  divorce,  about 
which  family  friends  and  the  matrimonial  committee  of  woman  (784 
A.)  are  to  have  the  deciding  voice. 


104  POLITICAL   SCIENCE. 

belonged  to  him  as  to  a  new  fountain  of  power.  For  the 
mitigations  of  this  patria  potestas,  from  the  ancient  one — 
when  on  moral  grounds  a  family  court  was  called  to  decide 
upon  the  reasonableness  of  exercising  the  power  of  life  and 
death — to  the  completion  of  the  system  of  law  in  the  empire, 
the  writers  on  Roman  antiquities  (as  L.  Lange,  i.,  §  32)  and  on 
Roman  law,  may  be  consulted.  Gaius  says  (i.,  <§  55)  "  item 
in  potestatc  nostra  stmt  libcri  uostri,  quos  justis  nnptiis  procre- 
avimus ;  quod  jus  proprium  avium  Romanorum  est ;  fere 
enim  nulli  alii  sunt  homines  qui  talent  in  filios  suos  habent  po- 
testatem,  qtialem  nos  habemus."  The  contrast  between  this 
Roman  usage  and  Greek  institutions  is  noticed  by  Dionys. 
Hal.,  ii.,  §§  26,  27.  This  stern  power,  be  it  remarked  in  pass- 
ing, was  with  Roman  conscientiousness,  formalism,  and  sense 
of  justice,  a  main  source  of  the  greatness  and  of  the  law  of 
this  remarkable  people. 

The  extent  of  power  given  to  the  father  of  the  family  by 
the  Romans  grew  out  of  a  sense  of  the  closeness  of  the  family 
union,  and  was  an  extreme  carrying  out  of  a  true  view  of  the 
domestic  relations.  It  may  have  derived  its  origin,  like  the 
family  courts  for  trying  the  misconduct  of  wives,  from  the 
feelings  and  precedents  of  the  gentes  and  the  early  com- 
munity system.  The  true  statement  should,  however,  in- 
clude the  rights  of  the  child  as  well  as  those  of  the  parent. 
Thus, 

1.  The  child  is  not  the  father's  property  in  any  sense.  He 
did  not  come  into  existence  for  the  sake  of  the  father  any 
more  than  the  state  is  constituted  for  the  sake  of  the  ruler. 
The  relation  is  established  for  the  training  of  the  children  that 
they,  under  a  good  discipline,  may  take  their  place  in  the 
world  of  men.  Hence,  the  father  has  a  right  to  use  such  and 
so  much  corrective  discipline  as  is  necessary  for  the  good  of 
the  child  and  the  maintenance  of  the  family  state. 

He  has  a  right  to  the  services  and  labors  of  the  child  when 
the  latter  is  strong  enough  to  labor,  in  order  thus  to  diminish 
the  burden  of  the  child's  support,  if  his  circumstances  should 
demand  such  relief.      Hence,  as  well  as  for  the  child's  benefit, 


PARTICULAR   RIGHTS.  10$ 

the  right  of  apprenticing  the  child  to  a  master  under  an  inden- 
ture in  order  to  learn  a  trade. 

He  is  the  natural  guardian  of  the  child  in  all  those  relations 
and  matters  of  business  in  which  the  child  has  no  jural  com- 
petence to  act.  Thus  his  consent  to  his  child's  marriage, 
when  under  age,  to  his  course  of  education,  and  the  like,  is 
necessary.  But  as  parents  are  often  incompetent  to  take  care 
of  property  left  to  their  children,  there  is  need  of  some  higher 
judgment  to  decide  who  can  fulfil  this  office  best.  This  office 
the  state  assumes.  In  regard  to  the  child's  education  there  is 
equal  need  of  a  supervision  over  the  parent,  for  he  may  be 
inclined  to  sacrifice  vital  interests  and  even  rights  through  a 
narrow  or  parsimonious  spirit.  In  the  matter  of  education 
the  true  view  is  that  the  state  has  a  right  to  interfere.  The 
child  has  a  right  to  an  education  if  it  be  within  the  parent's 
power.  If,  now,  the  state  places  this  by  public  schools  within 
his  power,  the  state  has  a  right  to  see  that  the  child  shall  be 
sent  to  school,  not  to  speak  of  the  benefit  to  the  state  and  all 
its  inhabitants  of  having  the  future  men  and  women  of  the 
country  well  educated.  In  such  education  the  authority  of 
the  master  takes  the  place,  for  the  time  and  for  the  object,  of 
that  of  the  parent,  and  justifies  such  discipline,  not  involving 
injury  or  outrage,  as  usage  and  opinion  do  not  forbid. 

2.  The  parent  is  obliged  to  support  the  child,  unless  inevi- 
tably prevented,  in  such  a  way  as  his  condition  in  life  requires, 
and  so  that  he  may  act  a  useful  part  in  the  world.  He  may, 
therefore,  if  possessed  of  property  which  he  is  manifestly 
wasting,  be  restrained  from  so  doing  on  account  of  the  right- 
ful claims  of  his  family. 

He  is  obliged  to  provide  for  the  future  support  of  his  family 
if  he  leaves  young  children  or  a  wife.  This  point  we  shall  look 
at  again  in  another  connection. 

3.  The  rights  and  obligations  of  children  towards  parents 
are  sufficiently  implied  in  what  has  just  been  said  of  the  correl- 
ative jural  ties  of  parents  to  their  children.  It  maybe  asked, 
in  addition,  whether  it  is  a  duty  or  an  obligation  of  children 
to  support  parents  in  old  age   and  poverty,  if  it  lies  within 


106  POLITICAL   SCIENCE. 

their  power.  We  may  reply  that  if  the* child  is  able  to  do 
this  it  may  be  called  his  obligation,  and  he  may  be  compelled 
to  do  it,  rather  than  that  the  state  or  the  humane  members  of 
it  should  take  his  place.  But  it  certainly  is  his  duty,  as  al- 
most all  nations  admit,  and  some  few  express  in  law.  It  is 
better,  however,  in  general,  to  class  this  among  those  numer- 
ous other  duties  to  which  the  family  relation  gives  birth,  and 
which,  if  that  relation  has  not  been  wholly  taken  off  its  hinges, 
will  be  discharged  with  a  gladness  of  affection  which  the  fam- 
ily pre-eminently  cultivates. 

$47- 
Humanity,  or  regard  for  kindred,  or  other  motive,  may 
prompt  a  married  pair  to  take  into  the  family 
and  treat  as  a  child  the  child  of  another.  This 
is  a  definite  jural  relation  which  imposes  obligations  on  those 
who  open  thus  their  doors  to  a  stranger,  and  gives  him  sub- 
stantially the  rights  of  a  child,  unless  there  is  an  explicit  un- 
derstanding to  the  contrary.  The  child's  good  is  in  all  to  be 
considered.  As  the  circumstances  vary  greatly, — sometimes 
a  poor  child  being  received  out  of  benevolent  feeling,  some- 
times a  childless  home  being  made  happy  by  a  new  inmate, 
sometimes  an  orphan  relative  being  provided  for, — it  is  im- 
possible to  say  exactly  what  is  due  to  the  adopted  one  in  the 
future.  Here  we  come  into  the  field  of  duty.  But  expecta- 
tions of  a  share  of  property  certainly  ought  not  to  be  excited 
without  being  fulfilled,  unless  misconduct  prevents. 

§48. 
These  subjects  belong  here  rather  than  under  the  head  of 
inheritance   and  property,  because  it  is  necessary  to  take  into 
view  the  closeness  of  the  family  union  before 
they  can  appear  in  their  proper  light. 

There  has  been  a  very  general  feeling  among  nations,  as 
expressed  in  their  laws,  that  a  man  is  bound  to  leave  his  prop- 
erty in  the  main  to  his  next  of  kin.  It  is  true,  as  we  have 
seen,  that  in  a  number  of  cases  land  is  placed  by  itself,  and 


PARTICULAR   RIGHTS.  107 

goes  down  by  certain  fixed  laws.*  Thus,  in  the  community 
system  there  is  no  right  to  bequeath  land,  for  the  deceased 
person  had  no  separate  share  of  it,  and  his  family,  if  he  had 
one,  would  take  his  share  as  a  matter  of  course.  In  the  tri- 
bal system,  land  is  retained  in  the  family  by  the  family  princi- 
ple itself.  Under  the  Spartan  constitution,  according  to  the 
received  accounts  on  which  Mr.  Grote  tries  to  throw  suspicion, 
equal  shares  were  made  at  the  Dorian  conquest,  and  the  en- 
deavor was  to  keep  families  up,  but  without  success,  f  In  the 
theory  of  the  feudal  system,  the  fief  went  in  some  countries 
to  the  eldest  son  by  law;  in  others,  though  not  generally,  to 
all,  and  for  some  time  females  could  not  inherit  on  failure  of 
direct  male  heirs.  In  despotic  countries,  where  conquest 
gave  much  of  the  land  into  the  hands  of  a  military  power,  the 
despot  was  conceived  to  be  the  ultimate  owner  of  the  soil ; 
and  no  disposition  of  it  could  be  made  without  his  consent 
expressed  in  law.  This  theory  and  the  similar  one  of  feudal 
times  would  prevent  even  free  sale  of  lands  by  the  occupant, 
since  he  was  only  a  tenant. 

But  where  houses,  lands,  and  other  property  can  by  law 
be  conveyed  with  equal  ease,  it  has  been  contended  by  some 
that  no  one  ought  to  be  able  to  bequeath  what  is  his,  because 
no  one  ought  to  have  the  power  to  control  his  property  after 
his  death.  In  defence  of  which  it  may  be  said  that  a  man 
often  makes  his  will  long  beforehand,  without  foreseeing  what 
will  be  the  condition  of  his  family  at  his  death,  so  that  his 

*  It  is  probable  that  in  the  earliest  communities  there  were  no  tes- 
taments. Tacitus  (de  mor.,  §  20)  says  this  of  the  Germans,  although 
it  was  allowed  afterwards  to  dispose  in  this  way  of  one's  property. 
(Grimm  I).  Rechtsalterth.  B.  ii.,  near  the  end.)  According  to  Plut. 
(vit.  Solon.,  §  21),  before  Solon  wills  were  not  in  use  in  Athens,  and 
they  were  first  allowed  in  Sparta  by  the  law  of  Epitadeus.  (Plut.  vit. 
Agid.,  §  5.)  While  lands  were  held  in  common  within  the  village 
community,  the  mark,  etc.,  there  was  little  or  no  need  of  testament. 
Usage  derived  from  family  feeling  determined  succession  for  some 
time  afterward. 

f  See  besides  other  works  on  Spartan  institutions,  Schomann's 
Gr.  Alt.  and  his  monograph  on  this  point  in  examination  of  Grote's 
views. 


108  POLITICAL   SCIENCE. 

provision  may  be  unequal  and  hurtful  ;  that  he  may  make 
arbitrary  arrangements  which  will  be  even  injurious  to  his 
family  after  a  few  years  ;  that  he  may  be  too  weak  in  his  last 
days  to  make  a  wise  testament,  or  may  be  under  undue  influ- 
ence from  ecclesiastical  persons,  and  so  on.  If  this  meant 
that  there  should  be  no  wills  and  that  property,  on  the  death 
of  the  head  of  a  household,  should  be  escheated  to  the  state 
instead  of  passing  down  by  good  intestate  laws,  it  would  de- 
feat its  own  objects.  For  a  man  would  take  care  during  his 
lifetime  to  do  that  which  he  could  have  no  power  to  do  at 
his  death.  The  family  feelings  will  have  their  way  in  spite 
of  theorists.  But  I  should  not  contend  against  taking  from 
men  the  power  to  make  testamentary  dispositions,  provided 
that  intestate  laws  could  be  framed,  founded  on  the  nature  and 
wants  of  families,  and  should  allow  a  certain  liberty  of  equi- 
table rather  than  equal  partition  of  estates  in  special  cases. 
As  it  is  now,  the  widow  is  defended  in  many  codes  against  a 
will  framed  without  regard  to  her  interests,  or  rights,  as  they 
can  well  be  called.  Why  should  not  the  children  have  simi- 
lar protection  ? 

The  Roman  querela  inofficiosi  tcstamenti,  devised  at  a  some- 
what late  period,  it  is  probable,  was  intended  as  a  remedy 
against  wills  which  manifested  a  want  of  the  proper  sense  of 
duty  towards  a  natural  heir  or  heirs.  When  an  heir,  who  had 
no  such  claim  (a  scriptus  hceres,  who  had  perhaps  insinuated 
himself  into  the  favor  of  the  testator),  had  taken  possession,  a 
natural  heir  might  bring  this  complaint ;  and  the  effect  was  to 
give  to  the  complainant  what  would  be  his  share  if  the  de- 
ceased had  died  intestate.  The  will  was  not  broken,  but  al- 
tered only  so  far  as  the  complainants  had  an  interest.  (See 
Vangerow,  Pandckt.  ii.,§  478  et  seq.)  It  seems  to  the  writer 
of  this  treatise  that  the  principle  of  this  complaint  is  entirely 
just.  The  property  of  a  head  of  a  family  is  his  against  others 
outside  of  the  family,  but  not  his  as  against  the  family  itself. 
During  his  lifetime  a  man  must  have  free  disposal  of  his 
wealth,  for  the  business  and  intercourse  of  the  world  demand 
it  ;  but  when  he  has  it  no  longer  as  active  capital,  it  belongs 


PARTICULAR   RIGHTS  I(X> 

to  his  family  by  reason  of  the  family  union.  Let  him  not  be 
allowed  to  violate  under  any  influence  so  sacred  a  relation. 
Let  him,  if  you  will,  have  control  over  a  portion,  but  a  portion 
only.  The  Roman  law  bound  from  one-third  to  one-half  of 
an  estate  for  the  benefit  of  heirs.  The  French  binds  from 
one-half  to  two-thirds.  The  Prussian  code  follows  the  same 
principle  of  the  civil  law.* 

If  the  power  of  making  a  will  is  left  to  the  heads  of  families, 
some  such  provisions  are  necessary.  If  it  is  taken  away,  the 
question  arises,  and  the  same  questions  meet  us  whenever  a 
will  is  not  made,  how  far  into  the  line  of  relations,  especially 
of  collateral  ones,  should  intestate  laws  run  in  their  provisions  ? 
In  a  state  of  society  where  a  man's  kindred  are  all  around 
him,  and  the  tie  to  the  more  remote  partakers  of  his  blood  is 
strong,  the  question  is  important,  and  probably  the  feeling  of 
society  would  include  them  in  the  benefit  of  intestate  laws. 
But  in  a  country  like  the  United  States,  where  blood-relations 
are  separated  by  moving  from  the  old  hive  of  the  family,  and 
rarely  see  one  another,  where  the  genealogical  feeling  is  weak, 
and  where  direct  heirs  seldom  fail ;  it  makes  little  difference 
whether  intestate  laws  embrace  remote  agnates  or  not.  Yet 
if  they  are  included,  the  law  does  good  by  binding  families 
together. 

Asa  parent  seems  to  have  a  right  to  banish  from  the  house- 
is  disinherison  a  no^  a  corrupt  member  of  it  for  the  sake  of  the 
nght?  children  and  family,  so  it  may  be  thought  that 

he  can  cut  off  such  a  child  from  a  share  in  his  estate.  This 
as  a  punishment  of  ingratitude  might  be  allowed  perhaps,  if 
the  courts  could  re-examine  and  judge  over  the  grounds  of  his 
conduct,  as  was  done  in  the  querela  of  Roman  law  just  now 
spoken  of. 

*  The  principle  of  the  querela  inofficiosi  testamenti  was  extended 
afterwards  to  similar  lavish  gifts,  violating  the  feeling  of  kindred  in  a 
person's  lifetime.  This  was  called  querela  inofficiosce  donationis  et 
dotis.  Comp.  Vangerow,  ii.,  §  482,  and  Windscheid,  Pandektenr.  ii., 
§  586  et  seq.,  ed.  3. 


IIO  POLITICAL   SCIENCE. 

If  anywhere  the  power  of  bequeathing  property  ought  to 
Bequests  toreiig-  be  under  a  higher  control,  there  ought  to  be  a 

ious  and  other  pub-  ..... 

lie  objects.  control  as  to  gifts  for  public  objects  which  are  in 

their  nature  perpetual.  The  endowments  of  monasteries  will 
serve  as  an  illustration.  There  was  once,  in  some  countries 
of  Europe,  nearly  a  third  of  the  existing  property  in  the  hands 
of  religious  corporations,  of  which  no  small  part  must  have 
been  given  pro  animi  salute,  and  at  the  instigation,  perhaps, 
of  the  officiating  priest.  When  a  change  of  religion  came  on 
in  Protestant  countries,  and  a  change  of  opinion  in  others, 
monastic  establishments  were  almost  everywhere  abolished, 
and  their  goods  disposed  of,  often  in  very  shameless  ways. 
Here  the  common  practice  of  Europe  has  decided  that  relig- 
ious endowments  may,  for  reasons  of  public  policy,  be  taken 
by  the  state,  and  made  use  of  for  purposes  which  the  giver 
had  not  in  his  mind  when  he  made  the  endowment.  This,  of 
course,  affected  all  property,  whether  given  in  a  man's  life- 
time or  at  his  death.  The  right  of  states  so  to  interfere  does 
not  now  concern  us;  but  the  experience  of  those  times  shows 
that,  on  the  one  hand,  the  powers  of  corporations  ought  not 
to  be  unlimited  as  to  the  amount  of  money  they  may  receive 
and  the  time  for  which  they  may  hold  it,  as  well  as  that,  on 
the  other,  the  power  of  bequeathing  to  such  bodies,  and  so  of 
alienating  it  from  natural  heirs,  ought  to  be  controlled. 

$49- 
We  come  next  to  those  rights  which  are  concerned  with 
the  more  spiritual  powers  of  man,  the  first  of 

Right  of  free  speech.  .  .  .  . 

which,  the  right  ol  tree  expression  of  thought, 
needs  but  a  brief  exposition.  The  right  of  speech  is  given 
in  reference  to  society  ;  there  could  be  no  true  society  with- 
out it,  unless  we  could  suppose  that  man  could,  in  time,  elab- 
orate a  sign-language  which  could  answer  the  same  purposes. 
Even  then  there  would  be  no  sufficient  substitute  for  commu- 
nication at  a  distance  and  by  writing,  so  that  the  range  of 
human  improvement  would  be  very  limited.  If  speech  is 
natural  and  supplies  a  natural  want,  free  speech  is  a   right 


PARTICULAR   RIGHTS.  I  I  i 

which  is  limited  only  by  its  interference  with  other  rights 
(as  that  of  reputation),  and  by  the  same  principles  of  duty 
that  are  to  control  individuals  in  the  exercise  of  other  rights 
in  particular  cases.  Further,  the  right  of  speech  implies  the 
right  of  addressing  public  assemblies  (so  far  as  this  does  not 
come  into  conflict  with  other  obligations),  together  with  the 
"  liberty  of  prophesying,"  with  free  letter-writing,  a  free  press, 
and  free  authorship.  How  far  state  rights  may  interfere  with 
these  modes  of  expressing  thought  will  be  a  subject  of  enquiry 
when  we  come  to  the  doctrine  of  the  state. 

§50. 

A  man's  good  name  is,  by  the  constitution  of  our  nature,  of 
value  to  him,  and  becomes  of  more  value  with 

Right  of  reputation. 

every  increase  of  civilization.  As  the  standard 
of  character,  of  fashion,  of  proficiency  in  an  art  or  trade  arises 
and  advances,  the  judgments  of  others  respecting  the  individ- 
ual become  more  important  in  affecting  his  earthly  caree-r ; 
and  there  is  a  new  sensitiveness,  connected  in  part  with  im- 
proved moral  or  social  training,  in  part  with  a  greater  ner- 
vous sensibility,  which  makes  obloquy,  scandal,  ridicule,  false 
reports  to  be  more  keenly  felt.  There  seem  to  be  two  rights 
included  in  what  is  commonly  called  the  right  of  reputation. 
One  is  causeless  insult  or  reproach,  the  injury  to  a  person's 
sensibilities,  which  can  occur  when  two  men  are  alone,  as 
easily  as  a  blow  may  be  given  in  the  same  circumstances,  and 
which  is  as  true  an  injury  as  a  slap  on  the  face.  In  all  insults 
or  reports  unjustly  aspersing  the  character,  this  injury  to  the 
feelings  is  to  be  considered,  apart  from  injury  to  business  and 
a  good  name.  But  the  unwitnessed  kind  of  insult  is  a  less 
important  species  of  wrong,  for  the  punishing  of  it  requires 
the  publishing  of  it.  It  leads,  however,  to  feuds,  blows,  duels, 
and  separations  of  families,  and  there  is  no  reason  why  it 
should  not  have  its  remedy. 

The  other  right,  which  has  respect  to  society  and  the  stand- 
ing of  individuals  in  society,  is  of  great  importance,  but  varies 
according  to  the  acuteness  of  the  sense  of  honor,  and  regard 


112  POLITICAL   SCIENCE. 

for  reputation.  No  cause  of  private  alienations  is  more  com* 
mon  than  those  thousand  intended  or  unintended  marks  of 
disrespect  which  are  among  the  minima  that  law  cannot  no- 
tice. From  these  come  alienations,  false  reports  which  destroy 
character  or  prevent  success  in  business,  and  revenge.  The 
right  is  the  more  difficult  to  protect,  because  free  speech,  by 
which  it  is  invaded,  is  a  right,  because  scandals  are  propagated 
from  mouth  to  mouth  without  thinking,  and  because  there  is 
no  possibility  of  concealing  the  foibles,  faults  or  misdeeds  of 
other  men.  Society  has  the  right  to  know  and  judge  of  its 
members,  and  the  members  have  a  right  to  be  protected 
against  unfounded  attacks.  The  press  and  newspapers  make 
the  remedy  of  the  abuse  of  free  speech  only  the  more  diffi- 
cult. 

A  strong  contrast  has  been  thought  to  exist  between  the 
sense  of  honor  of  the  most  cultivated  ancient  states  and  the 
modern  ones,  since  Christianity  called  men  more  to  self-analy- 
sis ;  and  the  subjective,  Germanic  feeling  began  to  influence 
Europe.  But  the  Athenians  and  Romans  were  by  no  means 
destitute  of  these  sensibilities.  The  former  in  their  laws 
provided  private  suits  for  evil  speaking.  (Bi'/cr)  /caKrjyopias).* 
The  laws  on  which  this  was  founded,  according  to  Meier  and 
Schomann,  (Att.  Proc. ,  481,  et  seq.)  provided  first  that  cer- 
tain words  called  airoppTjra,  i.  c,  forbidden  or  abominable, 
should  never  be  uttered  against  any  one  on  penalty  of  500 
drachmae,  which  probably  went  to  the  injured  party.  Such 
words  were  murderer,  he  who  threw  his  shield  away,  parri- 
cide, matricide.  Another  law  prohibited  saying  evil  of  the 
dead,  leaving  it  to  the  heir  to  prosecute.  Another  still  made 
actionable  any  evil  words  in  public  places  or  festivals,  and 
prescribed  damages  to  the  amount  of  five  drachmae,  two  of 
which  went  to  the  state.  And  still  another  protected  magis- 
trates from  insult  by  a  public  penalty  of  civil  dishonor.  In 
the  oration  against Theomnestus,  ascribed  to  Lysias,  the  person 

*  There  was,  as  Meier  and  Schomann,  Att.  Proc.  321,  show,  no  pub- 
lic action  for  abusive  words.  The  ypu</>r/  ifipeus  must  not  be  taken  in 
that  sense. 


PARTICULAR   RIGHTS.  113 

for  whom  it  was  written  sues  the  other  for  charging  him  with 
parricide. 

The  Romans,  as  early  as  the  time  of  the  twelve  tables, 
made  it  a  grave  offence  "  si  quis  occcntavissct  sivc  carmen 
condidissct  quod  infamiam  facer et  flagitiumve  altcri."  And 
Cicero  (in  Augustin.  de  civ.  dei.  ii.,  9)  gives  It  as  one  reason 
for  this,  that  no  one  ought  to  "hear  reproaches"  save  under 
circumstances  allowing  him  to  answer  and  to  defend  himself 
in  court.  Under  the  Emperors  from  Augustus  onward,  libels 
{libelli  famosi)  subjected  their  authors  to  severe  penalties. 
And,  by  Roman  law,  a  man  could  suffer  injury  when  a  person 
nearly  connected  with  him  was  aspersed  with  slander.* 

It  is  not  strange  that  the  Christian  nations,  so  much  more 
sensitive  and  subjective  than  the  most  refined  of  the  ancients, 
as  well  as  having  a  higher  standard  of  character,  should  ac- 
knowledge, and  in  law  protect  the  right  to  a  good  name. 
But  we  meet  with  difficulties  where  we  try  to  define  the  right, 
as  well  as  the  extent  of  the  correlative  obligation.  One  is 
the  difficulty  of  protecting  the  right  of  speech  and  of  the  press 
at  the  same  time.  It  is  easy  to  define  the  liability  a  man  in- 
curs by  a  pistol  that  he  carries,  or  by  his  unchained  dog,  but 
the  tongue,  which  no  man  can  tame,  will  speak  of  the  faults  of 
neighbors,  and,  indeed,  the  character  of  men  is  public  prop- 
erty so  far  as  it  is  indicated  by  public  acts  or  habits.  Not 
can  we  deny  that  a  certain  freedom  of  satire  and  of  holding 
people  up  to  ridicule,  both  by  speech  and  in  writing,  is  good 

*  Comp.  Augustin.  de  civ.  dei  ii.,  §  9  ;  Gaius,  inst.,  ill- ,  §  221,  who 
says,  "pati  antem  injuriam  videmus  non  solum  per  nosmet  ipsos, 
sed  etiam  per  liberos  nostros,  quos  in  potestate  habemus ;  item  per 
uxores  nostros,  quamvis  in  manu  non  sint.  Itaque  si  filiae  meae,  quae 
Titio  nupta  est  injuriam  feceris,  non  solum  nliae  nomine  tecum  agi 
injuriarum  potest,  verum  etiam  meo  quoque  et  Titii  nomine." 
Comp.  Paulli  Sentent.  v.  4,  §  3.  For  the  treatment  of  libelli  famosi, 
by  Augustus,  comp.  Tac.  annal.  i.,  72,  Dio  Cass.,  Ivi.,  p.  825,  ed. 
Reimar.  and  Suet.  vit.  August.  §55.  Here  we  may  add  the  suggestion 
that  the  just  principle  of  Roman  law,  extending  the  injury  of  slander 
or  libel,  ought  to  be  followed  in  modern  law  and  extended  so  as  to 
protect  the^good  name  of  persons  not  long  deceased,  from  contumely, 
and  their  graves,  recent  ones,  at  least,  from  desecration. 
8 


I  14  POLITICAL   SCIENCE. 

and  allowable.  It  was  wise  in  the  Athenians  to  suffer  the 
comic  drama  to  utter  such  things  as  would  make  demagogues 
and  other  knaves  wince,  although  the  poets  went  beyond  true 
bounds.  Here  then  we  have  the  rights  of  speech  and  the 
statement  of  the  truth  on  the  one  hand,  personal  feelings  and 
reputation  on  the  other.  The  principles  reconciling  the  two 
rights  seem  to  be  these  :  1.  To  tell  the  truth,  to  disclose  the 
truth  when  the  character  of  a  man  ought  to  be  known,  to  do 
this  publicly  when  he  is  talked  of  for  a  public  office,  may  be 
entirely  justifiable.  2.  To  put  the  principles  or  conduct  of 
a  person  in  a  ridiculous  light  by  word  or  caricature,  when  he 
is  thus  before  the  public,  is  equally  defensible.  3.  It  is  reas- 
onable, therefore,  that  the  truth  in  a  statement,  even  if 
uncalled  for,  should  take  off  something  of  its  libellous  charac- 
ter, unless  especial  malice  in  bringing  to  light  that  which  was 
not  known,  and  was  not  necessary  to  be  made  public  for  the 
purposes  of  truth,  can  be  alleged  in  the  case.  4.  In  all  cases, 
then,  the  malice  and  the  causelessness  of  the  injury  to  a  man's 
name  are  important  considerations,  nor  can  party  any  more 
than  petty  professional  or  other  jealousies,  excuse  libels. 
5.  Ridicule,  equally  with  sober  statements,  may  violate  rights, 
when  it  is  malicious  or  causeless,  whether  there  is  reason  for 
it  or  not.  6.  The  revelation  of  former  faults  or  misdeeds, 
[without  good  cause,]  of  persons  who  have  long  led  an  up- 
right life,  is  a  wrong  demanding  redress. 

Nowhere  in  the  department  of  justice  are  there  so  many 
trivial  offences  as  where  the  feelings  and  good  name  of  men 
are  concerned  ;  and  for  no  reason  do  men  take  the  chastise- 
ment of  others  into  their  hands  as  much  as  for  charges  affect- 
ing their  honor.  When  this  is  done  on  sudden  provocation, 
it  partakes  of  the  nature  of  self-defence,  and  perhaps  the  fear 
of  chastisement  for  slander  or  ridicule,  in  cases  where  no 
court  would  interfere,  is  wholesome  for  society  ;  but  the  duel, 
which  is  now  almost  entirely  given  up,  is  as  absurd  as  an  or- 
deal ;  and,  worse  than  an  ordeal,  it  gives  to  a  malicious  enemy 
the  power,  first  to  vilify  a  man  and  then  to  kill  him. 


PARTICULAR   RIGHTS.  115 

§  51- 

The  religious  faith  and  sensibilities  of  men,  as  they  express 
themselves  in  worship,  are  a  most  distinsjuishincr 

Rights  of  worship.  ttt  , 

part  of  our  nature.  We  cannot  properly  say 
chat  a  person  has  a  right  to  his  religious  opinions  as  long  as 
they  are  unexpressed,  or  to  his  convictions  of  duty  ;  these  are 
not  rights  which  might  be  waived,  but  belong  to  a  higher  do- 
main of  the  soul  which  rights  cannot  enter,  and  they  must  be 
carried  out  into  the  appropriate  acts.  When,  however,  there 
is  an  expression  of  religious  faith  and  feeling,  it  becomes  a 
right  more  sacred  than  any  other,  in  the  proportion  that  a 
sincere  man's  religion  is  his  highest  interest.  No  one,  either 
individual  or  state,  may  interfere  with  it.  What  the  state 
can  do,  consistently  with  right  theory,  in  the  matter  of  out- 
ward religion,  will  be  considered  hereafter.  At  present  it  is 
necessary  only  to  enquire  whether  the  right  of  worship  or  of 
expression  of  religious  sentiment  or  faith  has  any  limit  ?  The 
only  conceivable  limits  are  these  two  :  first,  where  the  wor- 
ship involves  something  that  is  outwardly  immoral,  or  is  op- 
posed to  the  rights  of  individuals.  The  worship  of  Mylitta, 
at  Babylon,  as  described  by  Herodotus,  and  the  worship  of 
Kali  by  the  Thugs,  may  serve  as  examples.  Certainly  such 
abominations  may  be  put  down  by  all  the  power  of  the  state  ; 
religious  rights  never  justified  impurity  or  invasion  of  the 
rights  of  men.  The  other  case  is  where  a  religion  by  its  ten- 
ets and  the  authority  put  into  the  hands  of  the  priests,  is  actu- 
ally interfering  with  the  legitimate  powers  of  the  state.  Sup- 
pose, for  instance,  the  Pope  to  assert  the  right  of  deposing 
kings  who  were  enemies  of  the  church,  or  even  to  endeavor 
to  make  void  the  laws  of  the  state  by  his  sentences  ex  cathe- 
dra, and  that  it  was  a  received  doctrine  of  the  Catholic  faith 
that  he  might  so  do  ;  or  suppose  the  members  of  some  Pro- 
testant communion  to  have  formed  a  political  league  with 
a  foreign  power  to  bring  in  a  new  sovereign.  What  should 
be  done  in  a  case  like  this  ?  The  answer  is  that  opinion 
without  acts  flowing  from  it  cannot  be  noticed  ;  that  when 
acts  are  committed  which  are  against  law  and  the  existence 


Il6  POLITICAL   SCIENCE. 

of  the  state  there  is  some  responsible  individual  to  be  dealt 
with  as  the  doer  of  the  acts ;  and  that  if  the  religionists  as  a 
body  are  implicated  in  treasonable  attempts  to  subvert  the 
government,  the)*  must  still  be  made  subject  to  the  ordinary- 
processes  of  law,  unless  they  should  break  out  into  civil  war, 
when,  of  course   extreme  measures  can  be  justified. 

§  52. 
If  a  man's  rights  are  suddenly  invaded,  he  does  his  best  to 
is  there  any  right  Pr°tect  them,  and  superior  strength  or  skill 
brings  the  issue.  But  there  are  many  wrongs 
where  self-defence  is  out  of  the  question,  as  where  men  dis- 
pute about  the  fulfilment  of  a  contract  or  their  respective 
titles  to  land.  Is  there  in  such  cases  a  right  to  redress  one's- 
self,  which  often  implies  a  right  to  decide  in  one's  own  case  ? 
If  there  were,  in  the  case  of  a  dispute  about  a  contract  both 
would  have  the  right,  for  both  claim  to  have  the  truth  and 
justice  on  their  side  ;  so  that  there  would  spring  up  wars 
about  contracts,  as  well  as  Hobbes'  wars  before  contract. 
But  there  seems  to  be  no  such  right  ;  at  the  most,  a  man  may 
get  possession  of  a  disputed  thing  with  an  intention  to  have 
the  question  of  ownership  submitted  to  some  arbitrator. 
Self-redress  implies  not  only  subjective  conviction  that  you 
are  right,  but  actual  right ;  and  how  can  persons  interested 
and  selfish  rightfully  become  judges  in  their  own  case.  If  a 
temporary  overturn  of  society,  as  in  a  revolution,  were  to  take 
place,  men  would  betake  themselves  to  wise  and  equitable 
persons  for  the  adjustment  of  their  disputes.  Natural  equity 
prescribes  that  men  do  not  judge  in  their  own  causes.  There 
is  need  of  a  higher  wisdom  provided  with  the  means  of  enforc- 
ing its  decisions  as  to  what  is  just  between  man  and  man, 
This  wisdom,  if  it  can  exist  anywhere,  is  found  in  the  STATE. 

§  53- 

If  there  cannot  be  said  to  be  a  right  of  the  individual  to 

The  h  ht  of  je-   rePaif  his  own  wrongs,  except  when  invaded  by 

Sdilifc:"wrongsesof  sudden  violence,  still  less  can  there  then  be  an 

obligation  to  shield  others  from  wrong,  unless 


PARTICULAR   RIGHTS.  llj 

they  form  with  him  a  natural  society,  like  the  family.  But  if 
there  is  no  obligation,  there  is  in  the  nature  of  man  a  sympa- 
thy with  the  injured,  especially  when  they  are  helpless,  and 
an  indignation  against  wrong,  which  will  lead  him,  with  cal- 
culation of  consequences  to  himself,  to  throw  himself  on  the 
side  of  the  injured.  These  noble  impulses  are  eminently  so-  • 
cial,  and  allied  with  the  noble  virtues  of  courage  and  self-sac- 
rifice. But  if  a  man  is  without  them,  or  if,  when  he  sees 
wrong  attempted  upon  the  helpless,  he  is  too  weak  to  interfere, 
he  violates  no  obligation  ;  nay,  further,  if  through  cowardice 
or  pure  selfish  regard  for  his  own  ease  he  will  not  take  part 
in  the  affair  on  the  right  side,  he  still  violates  no  obligation  ; 
he  may  behave  basely  or  unmanfully  in  this,  but  there  was 
no  right  in  the  injured  party  imposing  on  him  the  obligation 
of  assistance,  or  calling  on  him  to  satisfy  justice  as  if  he  had 
failed  in  fulfilling  his  obligations. 

This  supposed  case  shows  how  the  social  feelings  and  the 
rights  and  obligations  of  men  conspire  to  make  a  society-life 
both  necessary  for  man,  and  a  certainty,  if  we  could  suppose 
man  ever  in  a  state  of  isolation.  And  it  shows  also  that  out- 
moral  feelings  and  our  sense  of  rights  would  conspire  with  the 
desire  of  security  in  a  state  of  disorder,  to  give  rise  to  an  as- 
sociation, to  a  union,  for  instance,  of  neighboring  families, 
or  villages,  or  districts,  for  mutual  protection,  out  of  which 
organized  permanent  institutions  might  grow. 

§  54- 
There  are  other  considerations  also  derived  from  the  doc- 
Rights  need  the   trine  of  rights  itself  which  show  that  a  state,  or 

state  for  other  rea-  , 

sons.  a  just  and  permanent  power,  is  needed,  in  order 

that  a  just  and  secure  society  of  any  considerable  number  of 
persons  may  be  possible.  Thus,  in  the  first  place,  rights,  as 
we  have  seen,  are  indefinite  in  some  instances,  and  need  that 
an  acknowledged  power  should  define  them,  once  for  all. 
Men  need  to  know,  for  instance,  when  the  patria  potestas 
ceases,  and  when  the  grown-up  child  is  authorized  to  do  busi- 
ness on  his  own  account,  or  who  shall  succeed  to  an  intestate 


Il8  POLITICAL   SCIENCE. 

estate  within  the  family,  who,  if  the  deceased  had  no  family. 

2.  There  are  seemingly  a  number  of  collisions  of  rights 
which  need  an  interpreter,  placed  above  all  contending  par- 
ties. Such  is  the  case  when  a  father  bids  a  child  do  some  act 
which  interferes  with  the  rights  of  others.  So  also  the  right 
of  speech  may  seemingly  collide  with  that  of  reputation  ;  the 
right  of  self-defence  with  the  attempt  to  redress  a  wrong  ;  the 
right  of  property  with  the  rights  of  locomotion  ;  the  right  of 
worship    with    the    state    authority,    or    even    its    existence. 

3.  Certain  infractions  of  rights  are  grave  and  others  petty. 
Thus  injuries  to  the  good  name  of  a  person  may  be  exceeding- 
ly trivial ;  or  the  rights  of  property  may  be  invaded  by  the 
pettiest  theft  and  by  wholesale  plunder  alike,  and  the  rights 
of  persons  by  a  violent  assault  and  by  an  act  partaking  more 
of  the  nature  of  insult.  The  experience  acquired  by  a  stand- 
ing power  is  needed  to  determine  what  law  and  justice  ought 
to  notice  and  what  not,  whether  a  litigiousness  shall  be  en- 
couraged which  will  make  a  man  hated,  or  whether  he  shall  be 
forced  to  use  violence  to  redress  his  own  wrongs.  4.  There 
will  often  be  cases,  again,  like  many  under  the  rights  of 
contract  and  testamentary  disposition,  where  strict  right  is 
felt  to  be  wholly  wrong,  where  the  letter  interferes  with  the 
spirit ;  as  there  are  cases  when  unforeseen  and  extraordinary 
circumstances  call  for  some  relief,  and  others  where  an  ad- 
vantage is  taken,  under  the  forms  of  law,  of  the  ignorance  or 
simplicity  of  a  contracting  party.  Hence  we  see  that  not 
only  rules  of  justice  but  of  equity  also — which  is  the  border- 
land where  justice  and  benevolence  meet,  where  man  rises 
above  the  definitions  of  temporal  rights,  so  as  to  imitate  the 
infinite  Creator  who  judges  by  the  rule  of  his  own  intelligence, 
— need  to  be  applied  by  some  power  higher  than  the  individ- 
ual.* 5.  It  is  absolutely  necessary  that  the  laws  should  be 
known,  and  should  be  so  permanent  that  men  can  calculate 
upon  them  for  a  long  time  to  come.     When  the  laws  are  fixed, 

*  Aristotle's  definition  of  equity  makes  it  to  be  a  rectification  of  law, 
where  it  is  defective  on  account  of  its  generality.  Eth.  Nicom.,  V., 
10,  §  6. 


PARTICULAR   RIGHTS.  II9 

justice  will  not  seem  arbitrary,  and  will  be  respected,  and  con- 
fidence in  an  established  order  of  things  will  exist.  6.  The 
power  of  society  is  needed  to  make  rights  real,  after  it  is  as- 
certained what  they  are.  The  wrong-doer  may  flee,  and  the 
injured,  if  the  execution  of  a  sentence  is  entrusted  to  him, 
may  be  unable  to  leave  his  work  for  the  pursuit.  Or  an 
orphan  may  be  stripped  of  his  patrimony  by  a  man  of  fraud, 
or  an  unknown  culprit  needs  to  be  ferreted  out,  or  men  in 
distant  places  refuse  to  fulfil  their  obligations.  There  is  need 
of  a  power  that  is  present  in  all  parts  of  a  land,  that  is  stronger 
than  any  strong  invader  of  rights,  that  has  it  for  its  constant 
work  to  administer  justice,  that  knows  what  right  demands, 
that  has  no  fear  of  taking  the  side  of  the  humblest.  This  per- 
manent justice,  armed  with  might,  is  embodied  in  the  State. 


CHAPTER  III. 

SOME  OPINIONS   ON  JUSTICE,   NATURAL  LAW,   AND   RIGHTS. 

$55- 
We  will  now  endeavor,  by  way  of  supplement,  in  a  few 
Opinions  on  nam-  brief  sketches,  to  set  forth  the  opinions  on  jus- 

ral  law,  justice  and 

rights.  tice,  natural  law,  and  the  nature  of  rights  held 

by  some  of  the  principal  writers  of  ancient  and  modern  times. 

The  main  current  of  Greek  thought  on  jural  questions  was 
directed  towards  the  enquiry  into  the  nature  and  origin  of 
justice.  The  Sophists  denied  the  objective  nature  of  justice, 
and  man  was  the  measure  of  all  things  ;  which  might  mean 
that  what  the  state  pronounced  to  be  right  and  just  was  such, 
or  that  what  the  individual  thought  to  be  just  was  such. 
Thus  there  were  two  sophisticul  tendencies,  the  unlimited 
right  of  the  state  to  bring  all  things  into  conformity  with  the 
prevailing  subjective  view,  and  the  unlimited  right  of  the  in- 
dividual to  overturn  the  state  and  rule  it  as  a  tyrant. 

The  rights  of  the  individual  in  the  state,  and  over  against 
the  state,  and  determining  by  their  imperative 
nature  what  the  justice  of  law  ought  to  be,  were 
not  distinctly  recognized  by  the  Greek  philosophers.  Plato 
enquired  earnestly  into  the  nature  of  justice,  and  the  consti- 
tution of  the  just  state;  but  the  individual,  he  thought,  ex- 
isted for  the  state,  and  law  was  to  be  shaped  with  reference 
to  the  state's  welfare  and  permanence.  A  Platonic  definition 
of  justice  for  the  individual  is  found  in  the  words  ra  avrov 
irpaneiv*  to  mind  one  s  own  business,  to  fulfil  duties  and 
do  one's  part  within  a  certain  sphere,  but  the  sphere  is  fixed 

*  Repub.  iv.,  10,  p.  433  B.  "This  we  have  heard  from  others 
and  have  said  ourselves,"  says  Socrates. 


JUSTICE,    NATURAL   LAW,    AND    RIGHTS.  121 

by  the  state.  In  the  Republic,  where,  however,  the  ideal  state 
is  intended  as  an  enlarged  image  of  the  soul,  the  classes  of 
inhabitants  are  determined  by  the  state,  and  there  is  no  free 
marriage  and  no  family,  but  in  fact  a  communism  exceeding- 
ly cross  in  some  respects.  Political  justice  is  thus  that  har- 
mony of  the  parts  and  elements  of  society,  which  corresponds 
to  the  "good  order  of  the  parts  of  the  soul  towards  one 
another,  and  in  relation  to  one  another,"  in  which  the  Platonic 
definitions  of  an  uncertain  author  make  justice  to  consist.* 
Another  definition  of  justice  in  the  same  collection— that  it 
is  "  a  habit  that  apportions  to  each  one  that  which  is  accord- 
ing to  his  worth  " — puts,  as  I  understand  it,  the  conception 
of  the  value  of  the  individual  in  society,  according  to  the 
qualities  which  differentiate  him  from  others,  in  the  place 
which  the  modern  conception  of  equality,  as  the  standard 
of  justice,  occupies.  In  the  Laws — to  adopt  the  words  of 
Hildenbrand  (Gesch.  d.  Rechtsphilos.,  §  43) — "  the  sphere 
of  private  right  is  most  intimately  connected  with  the  organi- 
zation of  public  life,  and  is  entirely  controlled  by  the  state. 
The  state  distributes  the  immovable  property,  it  deter- 
mines the  amount  of  movable  property,  it  puts  obstacles 
in  the  way  of  inheritance  by  clumsy  coins  current  only  within 
its  own  limits,  it  decides  what  kinds  of  business  citizens  and 
denizens  shall  pursue,  it  forces  the  citizen  at  a  certain  age 
into  marriage,  prescribes  to  him  how  many  children  he  shall 
procreate,  etc."     See  especially,  books  viii.  and  xi. 

Aristotle  describes  justice  as  a  mean  between  two  extremes, 
and  the  doing  of  justice  as  a  middle  thing  be- 

Anstotle.  & 

tween  wronging  and  being  wronged.  "The 
just  man  is  he  who  practices  justice  of  course,  and  apportions 
a  share  both  to  himself  over  against  another,  and  to  another 
over  against  some  one  else,  not  so  as  [to  take]  more  of  that 
which  is  desirable  for  himself  and  [to  give]  less  to  another, 
and  to  do  the  opposite  in  respect  to  that  which  is  harmful, 
but  so  as  to  take  and  give  equally  of  that  which  is  propor- 

*  Comp.  the  discussion  in  Repub.  iv.,  pp.  433-435. 


122  POLITICAL   SCIENCE. 

tionately  equal,  [as  between  himself  and  another],  and  to  do 
the  same  as  between  two  other  persons."  (Ethic.  Nicom. 
v.  17,  p.  1 134).  Political  justice  or  right  he  makes  to  consist 
of  two  parts,  the  natural,  or  that  which  has  everywhere  the 
same  validity,  and  the  legal,  or  that  which  the  laws  make  such. 
The  former,  for  its  origin,  is  to  be  referred  back  to  the  divine 
being.  There  is  a  common  right  and  wrong  by  nature,  al- 
though there  may  be  no  society  or  compact  between  the  per- 
sons concerned.  (Rhet.  i.,  13,  2,  p.  1373,  where  he  quotes 
the  noble  passage  in  the  Antigone,  v.  456-7).  But  in  the 
constitution  of  the  state  he  shows,  as  far  as  I  can  judge,  no 
recognition  of  any  right  of  the  individual  against  the  state, 
although  he  avoids  some  of  the  errors  of  Plato. 

The  opinions  of  these  two  great  philosophers  respecting 
opinions  on  siav-  slavery  are  a  test  of  their  doctrine  of  rights. 
Plato,  in  a  brief  but  remarkable  passage  of  the 
laws  (vi.  776  B.  and  onw.),  shows  himself  to  be  aware  of  the 
practical  difficulties  attending  slavery,  but  he  makes  slaves  a 
component  part  of  the  state,  the  laws  and  constitution  of 
which  are  there  discussed  ;  he  dreads  familiarity  with  them 
and  a  treatment  of  them  which  is  due  to  freemen  ;  and  he 
would  have  those  of  the  same  race  kept  apart  from  one  an- 
other. In  short,  all  his  difficulties  centre  in  the  questions 
how  to  treat  the  slave — "  man  being  a  difficult  animal  to  get 
along  with," — and  what  practical  distinctions  are  to  be  ob- 
served between  him  and  the  free  master.     (777  B.). 

Aristotle  makes  the  slave  an  essential  part  of  the  economy 
of  life.  (Polit.  i.,  2,  §  3-7).  Slaves  are  such  by  nature,  his 
definition  of  a  slave  by  nature  being  that  "  he  does  not  be- 
long to  himself  but  to  another,  while  yet  he  is  a  man."  But 
here  he  has  to  face  the  question  which  had  been  started  by 
others  (ibid.,  §  3),  whether  by  nature  there  is  any  such  person 
as  a  slave,  and  whether  or  not  all  slavery  is  contrary  to  na- 
ture. His  solution  is  that  by  nature  something  rules  and 
something  is  ruled  ; — thus  the  soul  rules  the  body,  man,  the 
beasts,  the  male  man,  the  female  ;  and  hence  those  men  who 
are  as  much  inferior  to  others  as  soul  to  body,  or  man  to 


JUSTICE,   NATURAL   LAW,    AND    RIGHTS.  123 

beast,  ought  to  be  under  the  control  of  others,  and  are  natu- 
rallv  slaves.  Nature  wishes  to  express  the  difference  between 
the  two  classes  in  their  bodily  constitution,  so  that  slaves 
shall  have  bodies  strong  for  necessary  uses,  and  freemen, 
bodies  erect,  but  useless  for  such  labors  ;  yet  it  often  happens, 
on  the  contrary,  that  some  slaves  have  the  bodies  of  freemen 
and  some  the  souls  of  freemen.  What,  then,  is  the  distinc- 
tive mark  between  the  classes  ?  Shall  law  decide  ?  But 
many,  says  Aristotle,  charge  the  laws  with  being  unlawful, 
on  the  ground  that,  if  there  is  no  natural  slave,  force  must 
make  the  difference,  and  especially  victory  in  war.  To  this 
he  answers  again,  that  a  successful  war  at  the  outset  might  be 
unjust,  and  that  the  best-born  persons  might  be  reduced  to 
slavery.  Or  shall  we  say,  he  asks,  that  the  barbarians  are 
naturally  intended  to  be  slaves  ?  But  it  does  not  follow  that 
the  descendants  of  barbarian  slaves  will  have  the  characteris- 
tics of  the  slave  by  nature.  Thus,  although  slavery  is  founded 
on  nature,  we  cannot  divide  men  once  for  all  into  two  parts 
having  permanent  characteristics.  At  this  point,  as  another 
remarks,*  we  stand  in  expectation  of  some  practical  conse- 
quences, but  Aristotle  stops  short  of  them,  and  contents  him- 
self with  accepting  the  opinion  of  the  Greek  race,  that  the 
barbarians  were  intended  to  be  slaves,  and  the  Greeks  to  be 
freemen.  He  wishes,  also,  that  those  who  cultivate  the  soil 
should  be  slaves,  if  possible  (iv.  or  vii.,  9,  §  9),  and  expresses 
the  intention  to  speak  in  a  part  of  his  Politics,  which  is  lost 
or  never  was  written,  on  the  importance  of  holding  out  the 
hope  of  liberty  to  slaves  as  a  reward  for  good  conduct. 

If  it  had  occurred  to  Aristotle  that  the  condition  of  the  bar- 
barian slaves  might,  after  all,  be  a  transitory  one,  that  a  sys- 
tem of  education  might  raise  them  up  into  a  capacity  for 
political  life,  and  into  equality  of  endowment  or  something 
like  equality  with  the  Hellenic  race,  his  defence  of  the  natu- 
ralness of  slavery  would  have  appeared  to  him   untenable. 

*  Hildenbrand,  Gesch.  u.  system  der  Rechts  u.  Staats  philos.,  i., 
399- 


124  POLITICAL   SCIENCE. 

He  might  have  fallen  back  on  the  necessity  for  society  to  have 
a  working,  uneducated  class,  in  order  that  another  above 
them  might  addict  itself  to  political  affairs.  But  this  would 
hardly  have  been  satisfactory  to  a  mind  like  his. 

It  is  interesting  to  notice  that  the  Greeks  asked  what  man 
was  intended  for  by  nature,  although  they  failed  to  reach  the 
truth  of  individual  rights  ;  just  as  they  failed  to  reach  the  true 
monotheistic  doctrine,  when  Pindar,  ^Eschylus,  and  Sopho- 
cles gave  forth  the  noblest  thoughts  on  divine  righteousness 
and  providence.  Early  was  the  distinction  made  between 
what  human  law  and  what  divine  statutes  required.  "  I  did 
not  think,"  says  Antigone,  "  that  thy  proclamations  had  so 
much  power,  that  thou,  being  a  mortal,  couldst  over-ride  the 
unwritten  and  steadfast  ordinances  of  the  gods.  For  not  to- 
day and  yesterday  only  have  these  been  living,  but  everlast- 
ingly, and  no  one  knows  how  long  ago  they  appeared." 

The  inheritance  of  the  best  moral  ideas  of  Greek  philosophy 
fell  to  the  Stoics,  who,  by  the  doctrine  that  vir- 

Stoics.  .  .....  . . 

tue  consisted  in  living  according  to  nature — 
that  is,  both  to  the  law  of  general  and  of  human  nature, — by 
their  approach  to  the  principle  of  human  brotherhood,  by  the 
dignity  they  attached  to  moral  freedom  and  to  the  life  of  a 
philosopher  who  was  the  true  king,  infused  a  new  spirit  of 
humanity  and  justice  into  law,  and  contributed  to  shape  the 
views  of  the  best  Roman  philosophers.  The  growth,  also,  of 
the  Italian  city  into  a  vast  world-empire,  helped  those  senti- 
ments which  rise  above  local  ordinances  to  take  deep  hold  of 
thinkers.  The  Stoics  did  little  for  political  doctrine,  but  in 
concert  with  the  vastness  of  the  Roman  state  their  tenets  en- 
couraged cosmopolitan  feelings  and  the  idea  of  mankind. 
Thus  they  prepared  the  way  for  Christianity. 

Cicero  mainly  leaned  on  the  Stoics,  when  he  spoke  of  the 

highest  good  as  consisting  in  a  life  congruous 

with  nature,  and  of  virtue  as  an  "  animi  habitus 

naturae  modo  atque  rationi  consentaneus  "  (de  invent. ,  ii.,  S3) ; 

when  he  described  law  (the  law  of  nature,  or  natural  law),  as 

something  eternal,  governing  the  whole  world,  as  the  supreme 


JUSTICE,    NATURAL   LAW,    AND    RIGHTS.  1 25 

reason  which  commands  what  ought  to  be  done  and  prescribes 
the  contrary  ;  (de  leg. ,  ii. ,  4,  8,  10),  as  not  beginning  to  be  law 
when  it  is  written,  but  as  coeval  with  the  divine  mind  ;  and 
in  a  celebrated  passage  of  the  republic,  preserved  by  Lac- 
tantius  (Inst,  vi.,  8),  as  eternal,  beyond  the  power  of  senate 
or  people  to  abrogate,  the  same  everywhere,  found  out  by 
God,  disobedience  to  which,  being  contempt  of  the  nature  of 
man;  will  thereby  involve  the  transgressor  in  the  greatest 
penalties,  should  he  even  escape  those  punishments  that  are 
commonly  thought  to  be  such.  Views  like  these  would  lead 
to  a  condemnation  of  law,  if  it  did  not  seem  to  agree  with 
natural  law  or  right  reason,  and  to  an  endeavor  to  establish  a 
jus  naturale,  which  could  serve  as  a  standard  for  the  improve- 
ment of  law.  Without  enlarging,  we  may  say  that  the  law- 
yers enunciate  many  noble  maxims  which  have 

Roman  lawyers.  .    .  1      •     i 

to  do  with  right,  and  even  with  personal  rights, 
as  being  according  to  the  lex  natures  or  jus  naturale.  Thus 
we  find  it  said  that  "  as  far  as  relates  to  jus  naturale,  all  are 
equal ;  "  that  it  is  jus  naturale  for  the  owner  of  the  soil  to 
own  the  surface  ;  that  force  may  by  natural  justice  be  re- 
pelled by  force  ;  that  support  is  due  by  the  child  to  the  par- 
ent according  to  natural  reason  ;  that  to  keep  faith  has  in  it  a 
natural  equity  ;  that  the  rights  of  blood,  and  naturalia  jura 
in  general  cannot  be  set  aside  by  jus  civile ;  that  for  this 
reason  coguatio,  or  blood-relationship,  could  not  have  its  rights 
destroyed  by  capitis  deminutio,  while  agnatio,  as  a  civil  law 
relation,  could  ;  that,  according  to  some  authorities  (see  § 
25),  natural  reason  gives  to  the  owner  of  the  material  the 
ownership  of  the  finished  product  ;  that  locatio  eauductio  and 
societas  (partnership),  belonged  to  jus  gentium  ;  that  it  is  ac- 
cording to  natural  reason  that  immature  persons  should  be 
under  guardians.*  Principles  of  this  kind  were  regarded  as 
naturally  right  by  others  besides  lawyers,  and  even  slavery, 
in  a  land  full  of  slaves,  was  held  to  be  an  unnatural  condition. 

*  I  have  derived  much  in  this  brief  sketch  of  Roman  opinions  on 
the  lex  naturce,  etc.,  and  of  the  opinions  of  the  Stoics  from  Voigt,  die 
Lehre  vom  Jus  Naturale  der  ROmer,  1856. 


126  POLITICAL   SCIENCE. 

The  Roman  lawyers  would  seem  then,  to  have  based  near- 
ly all  the  natural  or  personal  rights,  as  we  call  them,  on  nat- 
ural law  of  reason  ;  and  yet  they  did  not  reach  the  right  of 
rights  in  the  subjective  sense.  Their  high  ideas  of  justice, 
therefore,  did  not  have  power  enough  even  to  overthrow  abu- 
ses they  condemned.  Nor  was  the  conception  of  rights  fully 
disclosed  to  the  Latin  fathers,  although  Christianity  teaches 
the  brotherhood  of  men,  awakens  the  sense  of  responsibility, 
and  empowers  the  meanest  person  to  adhere  to  his  convictions 
of  right,  even  to  the  suffering  of  death.  This  religion  taught 
the  converted  Roman  the  endless  worth  of  the  soul,  it  led  him 
to  condemn  slavery,  but  it  taught  him  to  endure  even  unjust 
law,  and  withdrew  his  mind  from  temporal  things.*  It  could 
not  but  happen  that  under  Christianity  personal  rights  should 
be  justly  apprehended  by  and  by,  but  it  took  time  to  do  this. 
For  establishing  this  sense  of  rights  great  influence  has  been 
christian  and  Ger-  assigned  to  the  characteristics  of  the  German 
man  tendencies.  mind  «  The  subjectivism  "  of  the  German, 
says  Bethmann-Hollweg  (Civilprocess,  iv.,  §  3  p.  4),  "gives 
to  him  the  immediate  consciousness  of  the  infinite  value  of 
personality,  and  thus  produces  that  enhanced  and  sensitive 
feeling  of  honor  which  is  a  stranger  to  Greeks  and  Romans. 
To  the  Roman  also,  it  is  true,  the  person,  as  he  objectivized  it 
in  its  relations  to  the  outer  world,  was  the  fundamental  concep- 
tion of  all  justice.  But  the  German  took  hold  of  the  concep- 
tion subjectively  and  in  the  synthetic  unity  of  its  inward  and 
outward  side,  and  so  in  the  unity  of  its  moral  and  jural  re- 
lations. Consequently,  in  the  relation  of  person  to  person  he 
strives  more  after  their  moral  union  than  their  jural  separa- 
tion. It  was  otherwise  with  the  Roman,  who  proposed  to 
himself  the  problem  of  preparing  the  foundation  for  free  moral- 
ity by  an  acknowledgment  of  abstract  jural  will,  who  thus 
drew  a  sharp  line  between  will  and  will,  and  hence  shaped  the 
different  relations  of  life  into  as  many  separate  jural  institu- 

*  Lactantius  has  the  words  "justitia    quae  nihil   aliud  est  quam 
Dei  unici  pia  et  religiosa  cultura."     Such  remarks  destroy  all  science, 

as  far  as  they  are  accepted. 


JUSTICE,    NATURAL   LAW,    AND    RIGHTS.  1 27 

tions.  The  Roman  jus  was  able,  on  this  path,  to  reach  a 
greater  perfection  in  form  ;  the  German  jus  sets  up  for  itself 
a  higher  never  fully  attainable  mark,  and  thus  fails  of  the 
same  formal  perfection."  "To  the  Roman  the  sum  total 
of  jus  presented  itself  objectively  as  the  ordinances  of  the 
state,  of  which  the  separate  private  rights  are  a  part." 

However  this  may  be,  it  has  taken  a  long  time  to  arrive  at 
a  clear  and  scientific  definition  of  rights.     Ac- 

Grotius.  .  . 

cording  to  Grotius  (in  the  prolegom.,  to  his  dc 
jure  bcl.  ct pac.y  and  elsewhere),  the  social  impulse  "  societatis 
appetitus,"  is  the  foundation  of  a  life  in  communities,  and  a 
state  of  society  is  that  into  which  this  impulse,  acting  unself- 
ishly, brings  them  together.  The  forms  which  human  wants 
give  to  societies  are  derived  from  express  or  tacit  contract  ; 
and  the  object  of  organized  societies  is  to  secure  to  every  one 
his  own,  that  is,  to  maintain  justice.  Property  arises,  by  an 
express  contract,  as  in  division  of  lands,  or  by  a  tacit  one,  as 
in  occupation.  In  a  state  of  nature  there  is  no  separate  prop- 
erty in  things.  Here  we  see  contract  beginning  to  play  the 
part  which  it  played  on  an  enlarged  scale  afterwards,  and  a 
fiction  of  a  state  of  nature  as  a  support  of  theory.  Otherwise 
the  explanations  are  lame  and  imperfect. 

The    state  of  nature  of   Hobbes  is  where  the    desires  of 
all  are  for  the  same  things,  and  where   all  war 

Hobbes.  .  . 

against  all,  to  escape  trom  which  a  strong  power 
was  instituted  for  the  preservation  of  justice  and  order. 
Selfishness  reigned  in  the  state  of  nature  ;  a  more  enlightened 
selfishness  endeavored  to  put  a  check  on  the  outbursts  of  the 
first.     (See  §  62  for  further  statements.) 

Pufendorf  did  little  more  than  unite   the  views  of  Grotius 

and  of  Hobbes,  except  that  he  separated  natu- 

Pufendorf.  . 

ral  law  from  religion,  as  an  independent  science 
resting  on  moral  foundations,  which  he  expounds  with  great 
copiousness. 

Thomasius  makes  an  era  by  endeavoring  to  draw  a  dis- 

Thomasius.       tinct  line  between  the  jural  and  moral  spheres. 

He  has   had  many  followers,   and  the  distinction,  so  far  as 


128  POLITICAL   SCIENCE. 

it  can  be  carried  out,  is  of  great  importance.      (Comp.   §  8, 
supra.) 

Locke's  influence  on  the  modern  theory  of  the  state  in  sev- 
eral respects  has  been  very  considerable,  as  we 
shall  set  forth  more  fully  in  another  place  ;  but 
in  regard  to  natural  right  and  rights — with  some  exceptions, 
such  as  his  theory  of  the  right  to  property  derived  from  mix- 
ing up  labor  with  a  natural  object — he  seems  to  have  followed 
earlier  writers,  Grotius,  Pufendorf,  and  Hooker.  He  lays 
the  foundation  of  society,  as  of  the  state  and  of  the  ruler's 
authority,  in  contract.  Rousseau's  opinions  we  shall  reserve 
until  we  come  to  the  doctrine  of  the  state. 

Kant  shed  a  new  and  striking  light  on  jural  science  by  de- 
Hmngj'us  and  rights  as  the  sum  total  of  the  con- 
ditions, under  which  the  external  freedom  of  the 
individual  can  be  maintained  in  company  with  the  freedom  of 
all.  The  conception  of  the  equality  and  co-existence  in  equal 
measure  of  all  personal  rights  is  a  most  important  thought, 
and  a  great  truth  lies  in  it.  But  the  philosopher's  definition 
does  not  so  much  contemplate  freedom  as  the  limitations  of 
freedom  caused  by  the  co-existence  of  many  in  one  society  ; 
it  does  not  bring  forward  sufficiently  the  side  of  obligation  to 
respect  the  freedom  of  others  ;  it  makes  freedom  or  rights  too 
much  an  end  rather  than  a  means. 

Hegel's  philosophy,  in  its  first  principles,  denied  the  inde- 
pendent personality  of  the  individual,  and  in  its 
leanings  favored  absolute  power.      It  could  not, 
therefore,  attach  a  high  importance  to  the  conception  of  per- 
sonal rights,  as  a  rule  of  just  legislation  in  the  state. 

The  English  school  of  utilitarianism,  which  originated  with 
„    .        Bentham,   has  produced  many  able  writers  on 

English  utilitarians.  * 

jurisprudence,  politics,  history,  and  metaphysics. 
We  select  Mr.  John  Austin  as  the  expounder,  in  his  lectures 
"ii  jurisprudence,  of  the  opinions  of  this  school.  According  to 
him,  "  a  command  is  distinguished  from  other  significations  of 
desire — by  the  power  and  the  purpose  of  the  party  command- 
ing to  inflict  an  evil  or  pain  in  case  the  desire  be  disregarded." 


JUSTICE,   NATURAL   LAW,    AND    RIGHTS.  I2Q 

"Being  liable  to  evil  from  you,  if  I  comply  not  with  a  wish 
which  you  signify,  I  am  bound  ox  obliged  by  your  command, 
or  I  lie  under  a  duty  to  obey  it."     (ed.  3,  i.,  91.) 

And  so  in  another  place  he  says,  in  criticising  the  assertion 
that  rights  are  powers,  "  that  the  party  invested  with  a  right 
is  invested  with  that  right  by  virtue  of  the  corresponding 
duty  imposed  upon  another  or  others.  And  this  duty  is  en- 
forced, not  by  the  power  of  the  party  invested  with  the  right, 
but  by  the  power  of  the  state.  The  power  resides  in  the 
state  ;  and,  by  virtue  of  the  power  residing  in  the  state  the 
party  invested  with  the  right  is  enabled  to  exercise  or  enjoy 
it."     (i.,409.) 

And  again  (i.,  353),  he  says  that,  "  like  the  obligations  to 
which  they  correspond,  natural  and  moral  rights  are  imperfect. 
In  other  words,  they  are  not  armed  with  the  legal  sanction,  or 
cannot  be  enforced  judicially.  Strictly  speaking,  there  are 
no  rights  but  those  which  are  the  creatures  of  law."  There 
is,  however,  another  sense  in  which  the  term  innate  rights 
may  be  used.  "  They  reside  in  the  party  without  any  other 
title  or  investitive  event  than  the  mere  fact  of  his  being  a  citi- 
zen of  a  community."     (p.  592-) 

From  these  passages  it  appears  that  Mr.  Austin  holds  : 
1.  that  duty  grows  out  of  liability  to  evil  in  case  of  non-com- 
pliance with  a  wish  signified  ;  2.  that  a  right  becomes  such 
by  virtue  of  the  corresponding  duty;  3.  that  no  natural  rights 
can  be  called  perfect  but  those  only  that  are  the  creations  of 
law  ;  4.  and  it  would  follow  that  there  is  no  real  difference 
between  an  unjust  and  an  inexpedient  law,  as  well  as  that,  in 
a  state  of  lawlessness,  a  person  or  association  possessed  of 
superior  strength,  by  giving  me  a  command  with  the  purpose 
to  inflict  evil  in  case  of  disobedience,  binds  or  obliges  me 
temporarily,  so  that  I  lie  under  a  duty  to  obey  him. 

Mr.  James  F.  Stephen,  in  his  "  liberty,  equality,  fraternity," 
interprets  the  teachings  of  the  English  utilitarian  school  as 
follows  :  "If  the  distinction  between  an  unjust  and  an  inex- 
pedient law  is  to  be  maintained,  it  must  be  done  by  the  help 
of  some  such  theory  as  is  involved  in  the  expression  '  rights 
9 


130  POLITICAL    SCIENCE. 

of  man.'  It  must  be  said  that  there  are  rights  which  are  not 
the  creatures  of  law,  but  which  exist  apart  from  and  antece- 
dently to  it ;  that  a  law  which  violates  any  of  these  rights  is 
unjust ;  and  that  a  law  which,  without  violating  them,  does 
more  harm  than  good,  is  simply  not  expedient.  I  need  not 
say  how  popular  such  theories  have  been,  or  what  influence 
they  have  exercised  in  the  world,  nor  need  I  remind  those 
who,  like  myself,  have  been  trained  in  the  school  of  Locke, 
Bentham,  and  Austin,  that  this  theory  is  altogether  irreconcil- 
able with  its  fundamental  doctrines.  The  analysis  of  laws 
(political  or  ethical),  according  to  that  school,  is  as  follows  : 
The  first  idea  of  all  is  force,  the  power  to  reward  and  punish. 
The  next  idea  is  command.  Obey  and  you  shall  be  rewarded. 
Disobey  and  you  shall  be  punished.  Commands  impose  du- 
ties and  confer  rights.  Let  A  do  what  he  will  with  this  field, 
and  let  no  one  else  interfere  with  him.  A  hereupon  has  a 
right  of  property  in  the  field,  and  the  rest  of  the  world. is  un- 
der a  duty  to  abstain  from  infringing  that  right.  This  theory 
is  irreconcilable  with  any  natural  rights  which  cannot  be  re- 
solved into  expediency."     (p.  196,  Amer.  ed.) 

The  theory  of  the  utilitarian  school  lies  beyond  our  present 
scope,  and  we  have  assumed  at  our  starting-point  (§  1)  its  un- 
tenableness.  We  only  say  here  that  as  duty,  according  to 
this  theory,  proceeds  from  the  bidding  of  a  superior  power, 
it  must  remain  such,  until  another  power  takes  the  place  of 
the  first.  But  how  is  it  to  take  the  place,  if  the  duty  of  all 
the  subjects  of  the  unjust  or  inexpedient  government  is  to 
obey  the  existing  power,  unless  through  a  failure  in  duty. 
There  can,  then,  be  no  remedy  for  tyranny,  the  most  grievous 
possible,  consistently  with  duty.  And  so  rights,  also,  will 
continue  in  existence,  not  because  they  ought  to  belong  to 
a  being  like  man,  but  because  no  duty  owed  to  the  power 
that  can  inflict  evil  can  interfere  with  them  or  do  them  away. 
A  most  gloomy  system,  by  which  power — not  right  and  right- 
eous law — but  power,  is  constituted  the  ruler  of  the  world  ; 
and  the  subject  of  this  power  is  not  called  on  to  ask  whether 
the  commands  issued  are  conformed  to  reason,  to  the  nature 


JUSTICE,    NATURAL   LAW,    AND   RIGHTS.  131 

of  man,  to  a  moral  sense,  or  even  to  the  rules  for  securing  the 
highest  happiness  of  the  whole,  since  duty  or  obligation  grows 
out  of  the  ability  of  power  to  make  disobedience  a  source  of 
evil  to  the  disobedient  person.  Ta  hUaia,  w  'AXki^luSt}, 
av/xfpepovrd  kariv. 

§56. 
In  closing  this  sketch  we  offer  to  our  readers  the  definitions 
of  rights  which  appear  in  several  writers  on  nat- 
ural law  and  political  philosophy.      Paley(i785) 
considers  rights  to  be  those  powers  with  which  it  is  right  that 
the  individual  should  be  invested.      This  is  true, 
but  unmeaning,  and  takes   no   account  of   the 
factor  of  freedom. 

Abicht  (1792)  defines  natural  law  {iiaturrccJii)  as  the  sci- 
ence of  rights,  so   far  as  these  flow  out  of  the 

Abicht.  ...  r 

nature  of  man,  in  agreement  with  the  nature  of 
all  the  things  that  man  needs  as  means  and  conditions  for  the 
attainment  of  the  ends  prescribed  by  reason. 

Dr.    Lieber,   in    his    political    ethics  (1838,   2d  ed.,    1874), 

expresses  himself  thus  :   "  It  appears  to  me  that 

Lieber-  1  ,  -  1  ,.  ,      , 

the  only  axiom  necessary  to  establish  the  sci- 
ence of  natural  law  is  this  :  I  exist  as  a  human  being,  there- 
fore I  have  a  right  to  exist  as  a  human  being."  (i.,  68.) 
"  Natural  law  then  inquires  into  the  rights  of  man  to  be  de- 
rived from  his  nature,  both  physical  and  moral,  for  the  latter 
is  closely  connected  with  the  former.  The  law  of  nature  is 
the  law, — the  body  of  rights,  which  we  deduce  from  the  es- 
sential nature  of  man."  (i.,  68.)  "The  state  is  founded  on 
those  rights  which  are  essential  to  all  its  members,  and  which 
can  be  enforced."  And  so  he  speaks  of  primordial  rights  as 
coeval  with  the  very  beginning  of  man's  existence,  as  not  cre- 
ated, but  admitted  and  defined  by  the  state,      (i.,  202.) 

C.  Von  Rotteck  (1829),  a  follower  of  Kant,  says  that  "all 
actions  are   jurally   right  (rcclitlicli),   which,   in 

Von  Rotteck.  ...  \  ,  •   i       i 

their  notion,  are  in  union  or  accordance  with  the 
equal  and  greatest  possible  outward  freedom  of  all."  The 
jural,  he  lays  it  down,  is  the  same  with  equal  and  external 


132  POLITICAL   SCIENXE. 

freedom.  "  In  the  subjective  sense,  jus  {recht)  is  the  compe- 
tence— or  the  permission  conceded  by  reason  to  one  in  rela- 
tion to  another — to  do  such  actions  or  have  such  ways  of 
action  "  as  are  not  opposed  to  objective  right.  Thus  the  es- 
sence of  right  here  consists  in  being  allowed  to  do  an  action. 
(in  einem  durferi). 

Zachariae,   to    whom   we  have    referred    already    (Vierzig 
Biicher  vom.   Staate,  revised   ed.,  1839),  savs 

Zachariae.  '  J?/'  ; 

"that  a  right  is  a  possibility  arising  from  the 
law  of  right,  of  imposing  an  obligation  on  others,  to  the  per- 
formance of  which  they  may  be  held  by  force."  The  defini- 
tion is  too  narrow,  for  it  seems  to  imply  in  the  word  "  impos- 
ing "  ianfziicrlcgcii)  that  some  positive  act  may  be  necessary 
in  order  that  an  obligation  may  lie  on  another.  But  physical 
life,  with  all  its  capacities,  and  some  departments  of  moral 
life,  lay  the  obligation  without  a  person's  will ;  it  comes  not 
from  will,  but  from  nature.  The  enforcible  character  of  an 
obligation,  moreover,  is,  as  already  said,  not  universal. 

Whewell (Elements  of  morality,  inch  polity,  1845,  i.,  64  and 
onw.,  Amer.  ed.)  explains  rights  in  the  follow- 

WhewelL  .  . 

ing  way.  There  are  certain  conceptions,  such 
as  those  of  property,  promises,  contract,  marriage,  which,  in 
an  abstract  and  general  shape,  include  the  principal,  really 
existing,  objects  of  human  desire  and  affection.  The  desires 
and  affections  are  personal,  and  the  individual's  desires  are 
not  necessarily  controlled  by  the  fact  that  the  real  objects  of 
desire  are  attached  to  another,  as  attributes  or  possessions. 
To  balance,  moderate,  check,  and  direct  the  desires  and  affec- 
tions which  tend  to  really  existing  objects,  there  must  be 
rules  of  action,  having  a  moral  nature  and  subordinate  to  the 
supreme  rule  of  action,  according  to  which  these  objects  may 
be  regarded  as  attributes  or  possessions  of  particular  persons. 
"  Abstractions  vested  in  particular  persons,  as  possessions  by 
rules  subordinate  to  the  supreme  rule,  are  rights."  "The  de- 
sire of  personal  safety  requires  that  there  should  be  perceived 
to  be  a  right  of  personal  safety  ;  "  and  so  that  of  property, 
that  there  should  exist  a  right  of  property,  etc.      For  other- 


JUSTICE,    NATURAL   LAW,    AND    RIGHTS.  1 33 

wise  the  desires  would  give  rise  to  continual  anger  and  fear, 
which  would  destroy  society.  That  is,  if  we  may  put  Whew- 
ell's  train  of  thought  in  another  shape,  non-interference  within 
the  sphere  appropriate  to  personal  existence — which  sphere 
is  defined  by  man's  natural  desires  and  affections — is  main- 
tained by  rules  of  action  involving  an  acknowledgment  of 
the  freedom  of  the  person  within  that  sphere,  and  the  wrong 
of  interfering  with  his  freedom.  The  view  taken  by  Dr. 
Whewell  is  excellent,  although  to  start  from  desires  instead 
of  starting  from  the  life-ends  or  destination  of  man,  looks  a 
little  Hobbesian.  It  is  not  capacity  to  realize  desires  without 
being  disturbed,  but  to  fulfil  the  ends  of  our  being,  to  unfold 
our  nature  according  to  the  perfect  law  of  life,  that  is  the  im- 
portant thing  to  be  considered. 

Ruder  {naturreckt,  1846),  a  high-minded  but  obscure  writer, 
defines  right  {recht)  to  be  the  law  of  the  life, 
both  internal  and  external,  of  rational  beings. 
But  it  is  not,  he  adds,  a  law  in  the  sense  of  the  necessary  laws 
of  nature  or  of  thought ;  it  has  to  do  with  life,  so  far  as  life  is 
variable  and  subject  to  the  self-determination  of  the  man  in 
thinking,  feeling,  and  acting.  But  the  good  and  the  right  is 
not  shaped  by  our  free  choice  ;  it  is  something  universally 
and  permanently  demanded  through  our  own  human  nature 
— a  law  of  reason  {vernunftgesets)  for  our  free  will,  a  law  of 
freedom  or  a  law  for  the  will.  (pp.  22-23.)  And  again, 
"  the  maxims  of  right  and  morals  are  wholly  different.  That 
of  morality  is  to  will  good  and  do  good, — including  right  as 
a  part  of  it,  in  all,  even  the  most  difficult  circumstances.  On 
the  other  hand,  the  principle  of  right  requires  of  all  to  will  and 
feel  bound  to  do  what  is  necessary,  in  order  that  each  one 
may  be  able  to  fulfil  his  whole  destination  as  a  man,  that  in 
which,  for  him,  the  good  consists.  Right  then,  in  part,  and 
indeed  mainly,  is  an  outward  order  of  things.  Only  there, 
when  a  person — from  whatever  motive — acts  in  conformity  to 
right  objectively  and  outwardly,  that  is,  does  not  injure  an- 
other's life,  but  renders  him  assistance,  can  all  thrive  and  flour- 
ish.    Such  actions,  although  not  inwardly  moral,  but  merely 


134  POLITICAL    SCIENCE. 

outward,  are  a  great  gain  for  mankind.  Right,  also,  accord- 
ing as  it  is  external,  can  be  realized  by  means  of  force. 

The  author  here  makes  the  true  distinction  between  the 
domain  of  rights  and  that  of  morals  ;  but  when  he  passes  be- 
yond the  negative,  not  injuring  another,  to  the  active,  render- 
ing him  assistance,  does  he  not  pass  over  into  the  sphere  of 
positive  morality  ? 

Ahrens,  once  professor  at  Brussels,  and  at  the  close  of  his 
life,  at  Leipzig,  where  he  died  in  1874,  published 

Ahrens.  .  .      ,T  .     .    _ 

his  "  Cours  de  Droit  JNaturel  first  at  Brussels, 
in  1837.  It  passed  through  seven  editions  in  French,  the  last 
in  1875,  and  appeared  in  German  and  in  various  translations, 
so  that  more  than  twenty  editions  indicate  the  great  favor 
with  which  the  work  has  been  received.  It  has,  however, 
been  greatly  modified  since  its  first  appearance.  The  in- 
troductory article  in  Von  Holtzendorf  s  Encyclopaedia  is  from 
the  same  honored  author. 

In  the  German  edition  of  1846,  after  the  second  French  one 
of  1843,  he  defines  right  {recht)  as  the  sum  and  substance  of 
the  conditions  dependent  on  the  will  of  the  individual,  and 
necessary  for  the  attainment  of  his  destiny,  as  pointed  out  by 
reason,  (p.  69.)  And  again,  "  right  has  its  foundation  in 
the  necessity  for  man  to  develop  himself  as  a  moral  and 
rational  being.  Hence,  man  alone  is  the  subject  of  right, 
since  the  attainment  of  the  rational  end  of  individual  and  so- 
cial life  is  the  only  object  of  right."  (p.  83.)  Further,  "  in- 
dividual right  includes  all  rights  which  flow  out  of  the  univer- 
sal quality  of  humanity,  and  which  hence  pertain  to  all 
individuals.  These  rights,  having  their  foundation  in  the 
nature  of  man,  are  called  especially  natural  or  original  or 
absolute  rights." 

In  the  sixth  and  seventh  French  editions,  Ahrens  defines 
droit  "as  the  sum  total  of  the  conditions  dependent  on  the 
will,  and  necessary  for  the  realization  of  all  the  individual  and 
the  common  good  which  form  the  destination  of  mankind 
and  of  society."  "  It  is  an  effect  of  the  creation  of  free  finite 
beings  to  be  called  to  complete  themselves  by  their  liberty." 


JUSTICE,    NATURAL   LAW,    AND   RIGHTS.  1 35 

The  aim  and  end  of  right  is  in  general  the  perfection  of  the  hu- 
man individual  and  of  human  society.  By  right  all  are  united 
in  solidarity  ;  the  right  of  one  presupposes  the  recognition  of 
the  rights  of  all  others."  "  The  material  of  right  is  twofold  ; 
it  is  composed,  on  the  one  hand,  of  the  good  or  the  ends 
which  are  to  be  realized  in  the  relations  of  rights,  and,  on  the 
other,  of  the  objects  which  form  the  means  for  its  realization. 
These  are  relatively  good,  or  useful,  and  so  right  (or  jus)  is  a 
principle  of  utility,"  "  but  the  great  difference  between  our 
conception  of  utility  and  Bentham's  is,  that,  instead  of  refer- 
ring utility  to  the  subjective  and  variable  sensations  of  pleas- 
ure, we  give  it  an  objective  base  in  the  principle  of  the  good, 
the  objective  face  of  which  it  presents.  To  appreciate  the 
useful  there  is  no  need  of  appealing  to  the  individual  senti- 
ment ;  we  must  discover  the  aims  of  man,  the  good  which 
ought  to  be  realized  in  life."  Right  again,  is  a  formal  prin- 
ciple, as  setting  forth  the  form — that  is,  the  manner — in  which 
the  relations  between  men  ought  to  be  regulated,  in  such  sort 
that  in  the  end  and  aim  of  the  community  each  man  may  at- 
tain to  his  own  end  and  aim.  The  proper  contents  of  right 
imply  the  performances  to  which  one  of  the  parties  is  obliged 
and  which  the  other  can  claim.  "  Right  is  both  an  objective 
and  a  subjective  principle — objective  as  a  rule  or  harmony  of, 
relations  essential  and  necessary  to  human  nature  ;  "  subjec- 
tive, as  pertaining  to  an  individual  or  collective  subject,  and 
to  be  realized  by  his  will.  In  every  jural  relation,  for  the 
persons  or  subjects  that  compose  it,  there  are  always  claims 
on  one  side  and  obligations  on  the  other,  etc.  (i.,  146,  §  20, 
and  onw.) 

Stahl  (professor  at  Berlin,  afterwards  minister  of  state),  in 
his  Philos.  des  Rechts  (2d  ed.,  1847),  has  the 
following  definition  in  vol.  ii. ,  1 ,  p.  2 1 8  :  "  By  the 
law  of  right  a  definite  form  is  given  to  the  relations  of  human 
life,  and  each  man  has  his  sphere  of  existence  and  action  as- 
signed to  him,  in  which  he  is  morally  protected.  Owing  to 
the  personality  of  the  man,  this  sphere  thus  assigned  to  him 
becomes  a  moral  power  of  his  own  to  protect  him  against 


136  POLITICAL   SCIENCE. 

others.  Others  are  morally  bound  to  him  ;  he  is  not  merely 
the  object  of  their  duty,  but  the  cause  of  it.  This  is  right  in 
the  subjective  sense,  or  rights. 

Trendelenburg    (professor  at  Berlin),  in   his  "  Naturrecht 
auf  dem  Grund  der  Ethik  "  (ed.  2,  1868,  comp. 

Trendelenburg.  ,    ,  .  ,  ...  ,   .  . 

especially  §§  45,  46),  expresses  himself  thus  : 
"The  will  of  the  individual  dwells  within  the  organization  of 
the  whole.  As  he  who  inhabits  a  house  acts  out  his  will  and 
pursues  his  work  in  the  house  according  to  his  own  wisdom 
or  folly,  so  the  individual,  within  the  limits  drawn  by  the 
whole,  has  the  province  of  his  own  determinations  ;  and  where 
he  is  too  weak  of  himself  to  protect  it,  he  derives  his  power 
for  that  purpose  from  the  power  of  the  whole.  In  this  sense 
rights  are  a  possibility  of  determining  one's  will  [in  actions], 
which  is  secured  [by  the  whole],  through  which  individuals 
act  out  their  freedom,  and  give  and  receive  in  the  community. 
The  rights  of  persons  are  the  acknowledged  power  of  their 
will,  in  the  definite  direction  of  its  decisions.  Behind  the 
acknowledgment  on  the  part  of  the  whole  stands  the  force 
which  threatens  the  injurer  ;  behind  the  demands  that  flow 
out  of  the  rights  stands  the  complaint  [of  the  injured],  involv- 
ing in  itself  an  appeal  to  force.  Rights,  in  this  subjective 
meaning,  as  authorizations  given  to  individuals,  so  far  as  they 
carry  with  them  moral  relations,  are  based  on  the  same  inward 
ends  of  the  morally  right  out  of  which  the  duties  arise.  (§45.) 
And  again  (§  46,  beginning),  "  Right  in  the  moral  whole  is 
the  sum  and  substance  of  those  general  rules  of  action  by 
which  it  happens  that  the  moral  whole  and  its  organized  parts 
can  maintain  and  further  cultivate  themselves.  All  right, 
(t.  e.,jus),  so  far  as  it  is  right  and  not  the  opposite  of  right, 
flows  out  of  the  effort  to  maintain  a  moral  existence." 

Prof.   Lorimer  (Institutes  of  law,  Edinb.,  1872),  says  that 

"  our    subjective  rights    arc  rights   exigible  by 

Lorimer.  _       .  .  . 

God  against  us,  and  by  us  against  others  in 
God's  name,  for  the  simple  reason  that  they  are  rights  inher- 
ent in  the  nature  which  God  has  formed.  To  these  rights 
duties  to  God  correspond,  the  fulfilment  of  which,  in  his  eyes, 


JUSTICE,    NATURAL   LAW,    AND   RIGHTS.  137 

and  with  reference  to  the  whole  scheme  of  his  government, 
are  just  as  imperative  as  those  which  correspond  to  the  ob- 
jective rights  of  others."  And  he  lays  it  down  that  "  in  our 
relation  to  creation,  animate  and  inanimate,  nature  reveals 
rights."  Thus  the  fact  of  our  being  involves  the  right  to  be — 
to  continue  to  be — the  right  to  the  conditions  of  our  existence 
— the  right  to  develop  our  being  and  to  the  conditions  of  its 
development — to  reproduce  and  multiply  our  being,  which 
itself  involves  the  right  of  transmitting  to  our  offspring  the 
conditions  of  our  existence — to  dispose  of  the  fruits  of  our 
being  inter  vivos  and  mortis  ca?isa.  All  our  subjective  rights 
resolve  themselves  into  the  right  of  liberty.  Again,  nature 
reveals  objective  rights  (or  the  objective  side  of  morality), 
which  exactly  correspond  to  our  subjective  rights,  and  ob- 
jective duties  or  duties  by  others  to  us,  which  exactly  corre- 
spond to  our  subjective  duties  or  duties  by  us  toothers.  The 
existence  of  subjective  and  objective  rights  and  duties,  and  of 
their  mutual  dependence,  constitutes  the  sole  revelation  which 
nature  makes  to  us  in  regard  to  human  relations.  (Book  i., 
ch.  7). 


Part  % 


THEORY   OF   THE   STATE. 


OPINIONS  ON  THE  NATURE  AND  ORIGIN  OF   THE  STATE. 


CHAPTER  I. 


§  S7-  (Introductory  Section.) 
We  have  already  reached  the  conclusion  that  in  order  to 
The  state  and  other  define  and  realize  rights,  there  must  be  a  perma- 
synonymous  terms.  nent  power,  at  once  just  and  strong.  The  defi- 
nitions of  rights  must  be  expressed  in  laws  or  must  proceed 
from  appointed  judges,  or  from  judges  chosen  by  parties  who 
have  disputes  with  one  another.  These  definitions  must  be 
permanent  ;  otherwise,  as  there  could  be  no  security  for  the 
future  or  calculation  upon  it,  the  motives  for  industry  and 
intercourse,  reaching  beyond  wants  for  the  time,  would  be 
greatly  weakened.  These  definitions,  again,  must  be  more 
than  standing  determinations  as  to  what  is  just  ;  they  must  be 
accompanied  by  might  equal  to  the  work  of  compelling  those 
who  refuse  to  be  just  toward  their  fellow-men,  to  obey  the  law 
of  righteousness  by  making  reparation.  They  must,  finally, 
have  a  distinct  province  or  territory  where  they  operate.  For 
it  is  evident  that  men  will  differ  in  their  opinions  concerning 
justice,  just  as  they  differ  in  race,  in  religion,  and  in  culture  ; 
that  different  laws  will  be  passed  ;  and  that  it  would  bring 


140  TOLITICAL  SCIENCE. 

about  endless  confusion  if  two  laws  should  be  valid  within  the 
same  territory,  relating  to  the  same  right  or  act. 

The  body  or  community  which  thus,  by  permanent  law, 
through  its  organs,  administers  justice  within  certain  limits 
of  territory,  is  called  a  state.  This  word,  like  several  others 
in  our  language  that  have  become  fixed  political  terms,  is  de- 
rived from  the  Latin,  but  is  not,  I  believe,  used  by  the  Ro- 
mans in  the  sense  so  frequent  among  us.  They  speak  of  the 
status  nostra  eivitatis,  but  the  word  civitas,  denoting  a  body 
of  citizens  united  in  a  community,*  comes  far  closer  to  our 
State  than  status  itself,  which  is  simply  state  or  condition,  in 
a  most  general  application.  But  civitas,  which,  in  a  more 
secondary  sense,  denoted  a  city,  a  place  where  a  civic  com- 
munity dwelt,  lost  that  other  and  nobler  meaning,  for  the 
reason,  perhaps,  that  a  city  and  a  state  were  no  longer  com- 
mensurate after  Rome  had  conquered  many  cities.  State, 
therefore,  the  condition,  the  political  condition, par  eminence, 
came  to  represent  the  notion  of  a  system  of  public  life  in  a 
people.  The  word  populus,  denoting  multitude  originally, f 
then  taking  the  nobler  sense  of  the  citizens  with  full  rights,  as 
opposed  to  the  plebs,  is  defined  by  Cicero  as  "  coetus  multitu- 
dinis,  juris  consensu  et  utilitatis  communione  congregatus" 
(de  Rep. ,  i. ,  25),  i.  e. ,  ^politically  organized mass  of  men.  This 
notion  of  political  union  appears  in  the  noble  term  res  publica. 
As  Mr.  Burke  says,  "  the  idea  of  a  people  is  the  idea  of  a  cor- 
poration." (Appeal  to  old  Whigs,  iii. ,  82,  Bonn's  ed.)  Natio 
had  little  if  any  political  sense.  It  rather  referred  to  those 
bodies  of  men  who  were  brought  together  by  birth  and  other 
co-operating  causes.  Cicero  speaks  of  the  "nation  of  the 
Greeks  "  (deOr.,  ii.,4,  18),  who  never  had  political  nationality, 
and  it  is  not,  I  believe,  used  of  Rome  in  the  early  writers.  And, 
to  mention  but  one  more  word,  gens,  connected  with  gigno, 

*  A  fine  example  of  this  sense  occurs  in  Cic.  Acad.,  ii.,  45,  137. 
"  Non  dubitavisset  quia  et  praetor  ille  esset,  et  Roma  urbs,  et  earn 
civitas  incoleret." 

f  G.  Curtius  connects  it  with  the  root  PLA.  full,  and  so  with 
77-X^os,  plcbs,  folk. 


OPINIONS   ON   THE   STATE.  141 

as  natio  with  nascor  {-=gnascor,  and  so  both  from  one  root), 
from  meaning  a  union  of  families  connected  by  birth,  a  clan 
or  sept,  became  synonymous  with  natio  ;  but,  as  the  gente s  of 
the  earliest  Roman  constitution  were  political  bodies,  the  po- 
litical notion  adheres  somewhat  to  the  word  :  thus,  jus  gentium 
denotes  those  principles  of  right  which  all  nations,  including 
Rome,  had  in  common ;  jus  civile,  what  was  peculiar  to  the 
latter.* 

The  practice  in  our  country  of  using  the  word  States  both 
of  the  United  States  and  of  each  state,  creates  a  political  dif- 
ficulty which  cannot  be  removed  but  by  some  term  for  the 
Union  in  general,  such,  for  instance,  as  Nation,  Republic,  or 
Commonwealth.  The  want  of  a  term  to  distinguish  the 
Union  as  being  in  reality  a  state  in  the  unitary  sense,  is  an 
evil  that  goes  beyond  the  mere  use  of  words  ;  it  confuses  or 
colors  thoughts.  Thus  we  often  have  to  say  "  the  general 
government,"  as  if  it  were  the  United  States  ;  thus  exalting 
the  organ,  the  administration,  or  the  law-making  and  execu- 
tive powers  above  their  true  place  ;  and,  on  the  other  hand, 
giving  the  impression  that  there  is  no  state,  besides  those 
states  which  compose  the  Union.  This,  and  the  word  sover- 
eignty, as  an  attribute  of  both,  have  been  the  means  of  no 
small  amount  of  evil.  The  Dutch  used  state  in  the  mediae- 
val sense  of  estate,  i.  e.,  territorial  lords  or  their  deputies,  as 
forming  an  incomplete  political  whole.  Thus  the  States  Gen- 
eral were  spoken  of  as  the  highest  body  of  deputies,  the  States 
of  Holland  as  those  pertaining  to  one  of  the  provinces  in  a 
separate,  provincial  session. 

State  has  this  advantage  over  other  words  that  have  been 
used  in  English  to  denote  a  political  union,  that  it  is  more 
comprehensive.  Thus  we  cannot  speak  of  a  political  union 
embracing   several   nationalities,  and  call  it  a  nation,  for  it 

*  The  word  state  acquired  in  the  mediaeval  times  some  important 
significations,  now  common  in  a  number  of  languages.  See  Du  Cange, 
sub  voce,  where  it  is  defined  as  regn /////,  ditto,  imperium  ;  =  the  State  ; 
as  estates,  doc.  of  a.d.  1361  ;  as  public  show,  pomp,  dignity  ;  as  rediius, 
fiscus  regins  (from  a  Charta  of  Henry  V.  of  England),  etc. 


142  POLITICAL   SCIENCE. 

is  nor  one  ;  there  being  no  tie  of  birth  or  common  descent 
to  bind  it  together,  and  perhaps  no  common  language. 
Hence,  the  kingdom  of  the  Netherlands,  as  constituted  by  the 
treaties  of  1 8 1 4—  1 8 1 5 ,  was  a  state,  but  not  a  nation,  since  the 
inhabitants  differed  territorially  in  religion,  language  (speak- 
ing Dutch,  Flemish,  and  French),  and  past  history.  Austria,, 
again,  is  a  compages  of  peoples  of  German,  Hungarian,  and 
Slavonic  extraction,  the  latter  differing  in  dialect  among  them- 
selves, which  constitute  no  nationality,  but  are  united  as  a 
state.  The  characteristic  which  attaches  to  the  nation  is  a 
sense  of  union  springing  out  of  inner  causes,  while  a  state 
need  imply  nothing  more  than  an  external  connection.  The 
cause  which  constituted  the  state  may  have  been  conquest, 
or  voluntary  union  for  mutual  advantage,  and  it  is  conceiva- 
ble that  the  parts  may  coalesce  so  as  even  to  lay  aside  one  of 
the  languages  they  used  at  first,  and  to  identify  their  institu- 
tions. On  the  other  hand,  two  nations  may  subsist,  speaking 
the  same  language  and  having  the  same  institutions,  but  there 
is  a  want  of  one  binding  force,  of  a  common  government  or 
constitution  to  bring  them  together.  Still  further,  there  are 
forms  of  political  life  where  neither  nation  nor  state  can  be 
said  to  be  found,  save  in  a  very  rudimentary  form.  Such 
were  the  parts  of  Europe,  particularly  France,  after  the  feudal 
system  came  in.  The  feudal  barony  was  not  a  state  nor  a 
nation  ;  the  general  country  under  the  suzerain  could  be 
called  in  some  sort  a  state,  although  quite  an  imperfect  one, 
but  not  a  nation  in  any  true  sense.  The  United  States  are  a 
state,  and  arc  a  nation  also  ;  yet  the  essential  character  of 
the  union  of  states  under  different  laws  and  constitutions  is 
such  that  the  separation  of  the  parts  is  absolutely  vital,  and 
the  name  of  nation  is  not  a  safe  one  to  us.  On  the  whole, 
state  is  the  only  scientific  term  proper  for  a  treatise  on  politics. 
When  we  go  beyond  political  science  we  find  a  great  use 
of  the  term  nation.  As  comprehending  those  characteristics 
which  make  up  nationality,  and  which  are  often  active  causes 
in  the  world,  a  nation  is  a  factor  in  the  philosophy  of  history. 
A  nation,  by  its  peculiarities,  such  as  language,  religion,  his- 


OPINIONS    ON   THE   STATE.  143 

tory,  common  sentiments,  is  brought  into  antagonism  with 
another  differing  from  it,  and  thus,  when  opportunity  and  a 
motive  are  given,  war  may  be  greatly  helped  by  these  differ- 
ences between  contiguous  bodies.  These  simple  facts  are 
reduced  to  a  theory  by  Cousin,  in  his  course  on  history  deliv- 
ered in  1828,  where  he  taught  that  each  nation  represents  an 
idea  of  a  given  time,  which  within  the  nation  itself  seems  to 
be  entitled  to  universal  reception.  War  arose,  he  thought, 
from  striving  to  force  this  idea  on  a  nation  representing  an- 
other idea,  and  results  in  good,  owing  to  the  triumph  of  the 
more  powerful  idea  over  the  less  powerful.  Thus  war  always 
was  an  aid  to  human  progress  and  the  advance  of  truth.  That 
differences  of  nations,  as  it  respects  religion,  human  rights, 
institutions,  and  the  like,  produce  mutual  dislike  and  render 
wars  easier,  that  war  often  helps  the  truer  opinions,  may  be 
admitted ;  yet  the  generalization  is  unsafe,  and  not  borne  out 
by  facts.* 

The  term  State  may  embrace  a  variety  of  forms,  and  there 
is  no  other  term  so  comprehensive.  Republic,  although  by 
its  signification  including  any  form  under  which  a  people  is 
found  or  which  it  adopts,  tends  to  be  applied  only  to  those 
where  the  people  controls  or  has  an  active  participation  in 
the  government.  Commonwealth,  abeautiful  word,  expresses 
a  state  where  the  weal  or  good  of  all  is  aimed  at  in  the  con- 
stitution and  government,  in  opposition  to  the  supposed  good 
of  a  line  of  kings,  or  of  a  governing  class  ;  but  it  is  most  natu- 
rally used  of  a  state  where  there  is  a  popular  cast  of  adminis- 
tration. It  may  embrace  all  the  forms  which  Aristotle  calls 
pure,  as  distinguished  from  those  which  are  degenerate,  or 
have  in  view  only  the  personal  interest  of  the  governors,  or 
governing  class  (Pol.  iii.,  4.,  §  7,'5,  §  1-4)  !  but  in  use,  it  is 
confined  to  such  as  come  near  to  a  popular  form,  to  states 
under  an  aristocratic  or  democratic  control.  It  is,  therefore, 
too  narrow  a  term  for  the  purposes  which  a  writer  on  politics 
must  have  in  view. 

*Comp.  Flint's  Philos.  of  Hist.,  L,  p.  194. 


144  POLITICAL   SCIENCE. 

State  and  nation  alike    contain   no  direct  reference  to  the 
territory  where  the  state's  power  is  especially 

State  and  territory.  .  ...  r    . 

put  forth  or  where  the  qualities  of  the  nation  are 
developed.  And  yet  the  territory  must  be  united  in  thought 
with  the  people,  in  order  that  any  organized  community  can 
be  conceived  of  as  having  come  into  existence.  A  small 
state  may  embark  all  its  citizens  in  ships  and  start  for  other 
settlements.  Meanwhile  the  organization  holds  over,  but  if 
no  settlement  is  found,  the  union  called  a  state  must  dissolve. 
We  have  seen  elsewhere  that  the  state  of  old  was  looked  at 
on  the  spiritual  side,  while  in  modern  times  it  is  the  mate- 
rial side — the  territory  that  has  become  more  prominent. 
Thus  a  rex  Francorum,  or  Anglorum,  was  spoken  of  before  a 
rex  Franciae  or  Angliae.  So  Judah,  Israel  gave  name  to  the 
land.  Yet  the  reason  for  this  may  have  been  that  in  the 
cases  mentioned  the  population  changed  its  territory,  while 
in  other  cases,  as  at  Athens  and  Rome,  the  people  were  called 
from  the  territory  Athenians  and  Romans.  The  Franks  and 
Angles  going  into  another  country  would  not  call  it  by  the 
name  of  Gaul  or  Britain,  and  so  they  named  it  from  them- 
selves. In  modern  times  the  wrords  jurisdiction,  realm,  king- 
dom, and  many  others  imply  place,  but  it  may  have  been  a 
secondary  meaning.  "  During  a  large  part  of  what  we  call 
modern  history,"  says  Sir  Henry  S.  Maine,  "  no  such  con- 
ception was  entertained  as  that  of  territorial  sovereignty." 
(Ancient  Law,  chap,  iv.)      Comp.  §  72. 

$58. 
Whatever  the  form  of  a  state  may  be,  it  claims  to  have  a 
Theory  of  the    right  to  exist,  for  man  even  in  uncivilized  tribes 

state,  especially   of 

its  right  to  exist.  or  nations  resents  the  claims  made  by  mere 
power  without  some  perceived  right  of  which  it  is  the  sup- 
port. And  in  civilized  times, — when  speculation  demands 
some  reasonable  foundation  for  the  right  which  a  government 
has  to  require  obedience,  and  the  right  which  a  state  has  to 
exist  and  to  express  its  life  by  a  particular  government, — there 
will  be  many  answers  given   which  are  theoretical  in  part  or 


OPINIONS   ON   THE   STATE.  145 

entirely,  which  are  intended  to  justify  the  right  of  a  particular 
state  to  exist,  or  to  show  by  what  process  consistent  with 
right  a  state  comes  into  existence.  The  interest  in  such  in- 
quiries is  in  part  purely  theoretical,  and  in  part  moral  and 
practical.  The  practical,  moral  inquiry  is  dictated  by  his- 
torical experience,  or  by  positive  oppression  of  a  part  of  the 
society  by  a  stronger  class,  or  of  the  people  by  the  govern- 
ment ;  or  again  the  government  endeavors  to  keep  a  hold 
upon  the  consciences  of  its  subjects,  and  is  not  content  with 
the  argument  "  sic  volo  sic  jubeo."  Thus  civil  strife,  revolu- 
tion must  be  shown  to  be  wrong  or  right  by  a  theory,  and  it 
is  in  times  of  conflict  that  political  theories  most  deeply 
interest  communities.  Afterwards  the  theory  may  rest  on  a 
wider  and  sounder  basis,  when  the  deductions  from  past  his- 
tory are  united  with  the  conclusions  from  the  nature  of  man. 

A  very  interesting  part  of  political  inquiry  consists  of  the 
theories  that  have  been  propounded  for  the  state's  right  to 
exist,  and  for  its  rights  in  general.  The  present  writer  feels 
it  to  be  important  to  give  a  brief  sketch  of  these  explanations 
of  the  doctrine  of  the  state  as  they  have  been  attempted  by 
writers  of  various  times  and  schools,  before  presenting  to  the 
reader  the  results  of  his  own  reflections. 

There  are  few  of  the  questions  which  we  now  ask  respect- 
™         ,  ,  .  •     ing    the  state,    that   seem  to    have   struck   the 

Theory  of  state  in  o  ' 

Greece.  Greek  inquirers  as  being  of  prime  importance. 

To  a  great  extent,  after  they  leave  the  subject  of  justice,  they 
confine  themselves  to  the  practical  side  of  politics,  which 
does  not  now  concern  us.  Their  end  is  an  ethical  one — to 
make  good  and  virtuous  states  through  institutions  and  laws. 
Thus,  the  Athenian  speaker  in  Plato's  laws  blames  Crete  and 
Sparta  for  the  military  direction  given  to  their  political  sys- 
tem, because,  although  courage  should  be  cherished,  it  is  a 
part  only  of  virtue.  A  truly  good  polity  will  encourage  all 
virtue  (i.,  626  B.  onw.).  And  so  Aristotle  says  (Eth.  Nicom. 
ii.,  1,  p.  1 103),  "  that  lawgivers  make  their  fellow-townsmen 
good  by  giving  them  good  habits,  and  this  is  the  intention  of 
every  lawgiver  ;  but  some  miss  the  mark  by  not  doing  this  well. 
10 


146  POLITICAL   SCIENCE. 

Herein  a  good  state-system  differs  from  abad."  In  the  Repub- 
lic of  Plato,  as  we  have  seen,  to,  kavrov  irpdrretv,  or  to  fill  that 
place  in  the  state  which  is  properly  one's  own,  is  the  idea  of 
political  justice.  But  the  state  needs  wise  men,  courageous 
men,  and  working  men.  In  order  that  the  upper  classes  may 
give  themselves  wholly  to  their  appropriate  work — the  rule 
and  defence  of  the  state — they  are  to  have  no  family  cares  ; 
and  hence,  to  have  property  in  common,  and  no  children 
whom  they  can  regard  as  their  own  ;  nay,  mothers  are  not  to 
know  their  own  children.  As  for  the  third  class,  he  gives  no 
thought  to  their  education,  and  he  says  nothing  of  slavery  in 
the  Republic,  because  his  working  class  supersedes  the  use 
of  any  such  human  chattels.  Plato  conceives  of  a  natural 
origin  of  states  from  the  family,  in  which  the  oldest  rule,  and 
the  rule  is  that  of  a  king-patriarch.  (Laws,  iii.,  680  E.)  The 
view  of  Aristotle  is  that  man  is  naturally  a  political  animal ; 
that  the  state,  developed  out  of  the  family  through  the  village 
(/CW/X77)  or  unwalled  collection  of  families,  is  thus  of  natural 
origin,  but  in  its  institutions  afterwards  is  modified  by  the 
will  of  men.  Yet  the  state  is  (f>vaei  prior  to  the  household 
and  individual,  because  the  whole  must  of  necessity  be  before 
the  part.  But  it  seems  that  they  drew  no  conclusions  from 
this  natural  origin  of  society.  Nor  did  they  found  the  right 
of  governments  to  exist  upon  consent,  so  far  as  I  can  see. 
The  old  kingdoms  of  which  Thucydides  speaks  (i.,  13,  comp. 
Aristot.  Pol.  iii.,  9,  §  7)  belonged,  one  may  say,  to  the  class 
of  constitutional  monarchies ;  the  rulers  ruled  eVt  pr)rol<; 
yepaai,  that  is,  they  had  fixed  prerogatives  assigned  to  them 
(such  as  those  of  army-leader,  judge,  and  priest).  This  im- 
plies some  covenant  or  understanding  between  the  king  and  the 
heads  of  the  little  state  ;  and  covenants  were  not  unfrequent 
in  later  times,  when  factions,  weary  of  civil  dissension,  agreed 
to  accept  a  constitution  or  code  of  laws  prepared  by  a  law- 
giver. Colonics  again  framed  constitutions  for  themselves, 
or  like  other  self-governing  bodies  altered  those  which  were 
given  to  them  at  their  foundations.  Thus,  one  might  say 
that  the  consent  of  the  citizens,  the   right  of  revolution,  the 


OPINIONS   ON   THE   STATE.  147 

right  of  modifying  institutions,  were  admitted  by  the  Greeks 
in  practice.  But  the  philosophers  did  not  trouble  themselves 
much  with  such  questions  as  by  what  right  does  a  state  exist, 
how  do  state  rights  arise,  how  must  the  citizens  give  their 
consent,  is  there  any  right  of  revolution,  have  all  men  a  share 
by  natural  law  in  the  control  of  the  state,  and  in  the  election 
of  officers.  Holding  that  the  individual  was  made  for  the  state, 
and  yet  that  the  state's  aim  was  to  secure  justice  as  well  as  the 
welfare  of  all,  they  were  ready  to  sacrifice  to  the  state's  sup- 
posed good  what  we  call  natural  rights  ;  their  ideal  was  a  state 
in  which  the  wisest  should  govern,  and  so  they  did  not  like  de- 
mocracies ;  they  were  willing  that  the  state  should  control 
education,  religion,  art,  and  interfere  with  domestic  economy  ; 
in  short,  they  leaned  to  the  communistic  theory  without  giving 
into  it  entirely.  Most  of  what  Plato  in  the  Laws,  and  Aristo- 
tle in  his  Politics,  teach  us  is  practical  rather  than  theoretical,, 
as  how  states  depart  from  their  type,  what  is  the  best  state,  or 
what  kinds  of  laws  are  best  for  a  state's  permanent  welfare.* 
The  constitution  of  Rome  contains  the  notion  of  the  sov- 
Roman  theory  of  ereignty  of  the  free  people,  which  people,  by 
the  state.  internal  changes,  instead  of  remaining  as  orig- 

inally, an  aristocracy  of  descendants  of  the  original  founders 
or  of  others  admitted  to  share  political  rights  with  them,  came 
at  last  to  include  all  free  Romans  of  whatever  class.  The 
right  of  the  people  to  alter  the  constitution  is  seen  in  the 
revolution  which  expelled  the  kings,  in  the  institution  of  tri- 
bunes and  in  all  those  subsequent  changes  by  which  the 
equality  of  all  in  political  rights  was  at  length  reached.  It 
is  illustrated  in  a  striking  way,  also,  by  the  accumulation  of 
powers  conferred  on  the  first  emperor  by  the  people  and  in 
the  forms  of  electing  them  which  for  some  time  continued, 
which  shows  the  necessity  for  their  sense  of  right  of  a  formal 

*  The  circle  in  which  forms  of  government  were  thought  to  run 
almost  of  necessity  is  described  by  Polybius  vi.,  6-9.  He  begins  at 
the  origin  of  human  society  and  ends  with  cheirocratia,  the  govern- 
ment of  the  worst,  below  which  the  "economy  of  nature"  cannot 
go.     See  more  in  §  154. 


148  POLITICAL   SCIENCE. 

ground  for  the  empire.  The  Roman  statesmen  derived  theif 
speculations  from  the  Greeks,  but  tempered  them  with  Roman 
practical  wisdom.  Cicero  has  not  much  valuable  theory  re- 
specting the  state.  It  is  laid  down  by  one  of  the  speakers 
in  Cicero's  Republic  (i.,  31,  47-)  "  that  liberty  has  no  abode  in 
any  state,  except  that  in  which  the  power  of  the  people  is 
supreme."  But  by  the  people  is  intended  the  mass  of  the 
citizens,  as  opposed  to  a  monarch  or  an  oligarchy.  As  for 
the  forms  of  states,  which  are  three,  the  principal  speaker, 
Scipio,  says  that  if  he  had  to  make  a  choice  between  them 
he  should  give  the  preference  to  the  royal  form,  but  that 
he  thinks  a  mixed  constitution,  in  which  the  three  are  com- 
bined, better  than  any  in  which  they  are  separate.  As  for 
democracy,  he  finds  it  unable  to  preserve  equality  of  rights, 
and  that  an  equality,  according  to  which  like  honor  is  paid 
to  the  highest  and  lowest,  is  itself  unequal.  (Repub. ,  i. ,  35,  54. 
34,  53-)  This  doctrine  of  the  superiority  of  mixed  forms  of 
government  had  been  taught  by  earlier  political  philosophers. 

$59- 
The  Roman  imperial  system  gave  little  encouragement  to 
Theory  of  the  state  the  propagation  of  political  theories,  but  could 

in   the   Roman  em-  .      .        _      ,.  .        .     n  r     .  ,. 

pire,  not  help  feeling  the  influence  01  the  new  reh* 

gious  ideas  which  came  in  the  company  of  Christianity. 
The  emperor,  who  was  at  first  the  vicar  and  embodiment  of 
the  powers  of  the  people,  is  now,  like  the  Jewish  kings  of  the 
house  of  David,  a  delegate  of  God.  But  a  new  question  of 
great  importance,  theoretically  as  well  as  practically,  began  to 
be  discussed  when  the  western  world  came  to  regard  the  bishop 
of  Rome  as  the  head  of  the  church,  as  the  representative  of 
moral  and  religious  power.  How  shall  the  claims  of  the 
state  and  of  the  church  be  reconciled  ?  The  answers  given  at 
various  times  to  this  question  we  intend  to  discuss  in  the  part 
of  this  work  devoted  to  practical  politics.  At  present  it  is 
and  in  the  medieval  enough  to  say  that  the  heads  of  the  church 
church-  were  not  content  with  the  theory  that  state  and 

church  were  co-ordinate.     That  theory  in  fact  encountered,  in 


OPINIONS   ON   THE   STATE.  149 

the  carrying  of  it  out,  great  practical  difficulties.  While  it 
was  admitted  that  obedience  was  due,  according  to  the 
scriptures  and  general  ethical  principles,  to  the  civil  power, 
there  were  limits  arising  from  the  moral  quality  of  the  state's 
commands  which  needed  an  interpreter,  and  the  interpreter 
must  belong  to  the  church  itself,  which  expounds  by  its  office 
the  principles  of  morals.  Moreover,  as  the  interests  of  the 
soul  are  more  weighty  than  those  of  the  body  and  of  exter- 
nal life,  they  who  manage  the  affairs  of  the  soul  ought  to 
have  the  last  word. 

It  was  to  be  expected  that  the  old  principle  of  the  suprem- 

Revivai   of   the  acy  of  tne  P°pe>  which  the  growing  strength 

catholic  theory.       of  the  nationai  principle  had  opposed,  and  the 

policy  of  the  times  after  the  reformation  had  held  as  it  were 
by  a  leash,  would  be  let  loose  again  in  the  reaction  after  the 
French  revolution.  Nothing  new  indeed  can  be  added  to  the 
theory  of  the  middle  ages,  but  it  was  revived  and  found  expo- 
nents, among  others  in  Bonald  and   Count  To- 

Bonald.  .  . 

seph  Le  Maistre,  a  Sardinian  minister  of  state 
and  ambassador  to  St.  Petersburg,  Bonald  teaches  that  the 
peace  of  Westphalia  first  established  the  atheistic  doctrine  of 
the  religious  and  political  sovereignty  of  man,  the  principle 
of  all  revolutions,  the  root  of  all  the  evils  that  trouble  soci- 
ety. In  acknowledging  the  independence  of  Switzerland  and 
the  Netherlands,  the  heads  of  the  nations  concerned  in  that 
peace  sanctioned  the  existence  of  political  democracy,  and  in 
their  religious  concessions  that  of  religious  democracy.     Le 

Maistre's  opinions  are  embodied  in  his  "  Essai 

Count  J.  Le  Maistre.  x 

sur  le  principe  generateur  des  constitutions  poli- 
tiques,"  (1810,  1814)  ;  his  "  Du  Pape  "  (2d  ed.  1825)  and  his 
"  Soirees  de  St.  Petersbourg,"  a  posthumous  work  published 
in  1 82 1.  His  works  want  method  and  system,  but  his  views 
are  something  such  as  follows  :  "  All  states  are  divinely 
ordained.  For  man  to  undertake  to  change  them  is  to  as 
sume  the  prerogative  of  God.  Of  the  various  constitutions, 
a  hereditary  monarchy  is  the  most  perfect.  This  form  re- 
quires an  order  of  nobility  which   is  God's   institution  and 


150  POLITICAL   SCIENCE. 

must  not  be  invaded.  Over  all  stands  the  Roman  Catholic 
church,  and  its  head  by  Christ  appointed,  the  Pope.  To  this 
source  the  nations  are  to  look  for  justice  united  to  religion. 
The  revolution  in  France  aimed  at  good,  but  began  in  the 
wrong  way.  Reforms  must  begin  at  the  top  ;  they  must  ema- 
nate from  the  Pope,  and  go  downward."  Such  as  this  was  the 
genius  of  the  old  French  monarchy.  One  cannot  fail  to  feel 
a  sort  of  respect  for  the  religious  element,  however  perverted 
it  may  be,  in  this  political  theory  ;  but  the  weakness  of  the 
scheme  is  manifest.  If  existing  states  are  ordained  of  God, 
and  the  Pope  is  supreme  over  all  states,  what  is  to  be  said  of 
states  ordained  of  God  and  yet  rejecting  the  Pope's  authority 
altogether  ?  What  of  states  rejecting  kings,  nobility  and  Pope 
all  at  once  ?  They  have  a  right  to  exist,  and  yet  they  refuse 
to  submit  to  the  principle  which  alone  reconciles  their  exist- 
ence with  the  true  religion.  Le  Maistre  confines  God's 
agency  to  the  guidance  of  outward  affairs  by  means  of  rulers, 
but  excludes  him  from  the  progress  of  events  and  changes  in 
a  nation,  and  from  the  inward  convictions  of  mankind. 

This  sort  of  absolutism  goes  farther  than  the  theory  of  the 
middle  ages.  It  is  remarkable,  however;  as  being  the  system 
to  which  consistent  Catholics  have  been  inclining  since  the 
modern  revolutionary  period. 

$60. 
Macchiavelli  might  be  omitted  here  on  account  of  the 
Macchiaveiii's  po-  almost  exclusively  practical  character  of  his 
lmcai  principles.  observations,  but  we  cannot  pass  by  so  impor- 
tant a  man  without  devoting  a  few  words  to  his  opinions.  It 
has  been  said  that  his  political  maxims  were  purely  subjec- 
tive and  arbitrary  ;  that  his  motto  is,  whatever  suits  my  end 
is  right.  But  this  is  not  true  ;  his  aim  was  the  safety  and 
order  of  the  state.  His  principle  in  the  most  objectionable 
parts  of  //  Prencipe  is  not  that  what  secures  the  prince's  ob- 
ject is  right,  but  that  for  the  preservation  of  a  state  or  of  a 
new  prince  any  needed  measures  are  permissible.  In  other 
words,  self-preservation  knows  no  morality  ;    which  is    bad 


OPINIONS   ON   THE   STATE.  151 

enough,  but  not  a  denial  of  moral  distinctions.  In  his  admi- 
ration of  ability  and  strength  he  looks  at  hesitation  on  moral 
grounds  as  weak,  as  leaving  the  advantage  in  the  hands  of  a 
flagitious  foe.  Of  course,  if  men  acted  by  such  a  rule,  all 
public  morals  must  give  way  in  a  bad  age  like  that  in  which 
he  lived,  and  universal  distrust  must  hurry  on  the  ruin.  In  77 
Prencipe  he  says  (chap,  xviii.)  that  "  a  prince  must  be  a  fox 
as  well  as  a  lion.  A  wise  seignior  cannot  and  ought  not  to 
keep  faith,  when  keeping  it  is  to  his  disadvantage,  and  when 
the  reasons  which  led  him  to  make  a  promise  have  ceased. 
If  all  men  were  good,  this  precept  would  not  be  a  good  one  ; 
but  because  they  are  sad  creatures  and  will  not  keep  faith 
with  thee,  thou  also  art  not  bound  to  keep  it  with  them." 
Nor  will  a  prince  ever  be  without  legitimate  occasions  to  ex- 
cuse his  want  of  faith.  In  his  wise  and  able  discourses  on 
the  first  decade  of  Livy,  we  see  how  he  regards  religion  as  a 
handmaid  of  state  policy  and  allows  pious  frauds,  while  he 
holds  religion  to  be  necessary  for  the  existence  of  the  state, 
(i.,  n,  pp.  70,  72,  ed.  of  1797.)  In  this  and  other  respects, 
he  was,  like  the  literati  of  Italy  in  general  after  the  revival  of 
learning,  quite  a  heathen.  In  chap.  xxx.  he  advises  a  cap- 
tain who  is  afraid  of  a  prince,  if  his  own  security  requires,  to 
corrupt  the  heads  of  his  army,  and  to  get  into  his  power  those 
whom  he  cannot  corrupt.  In  chap,  xliv.,  fin.,  he  remarks  on 
"the  great  folly  and  little  prudence  that  there  is  in  demanding 
a  thing  and  saying  that  you  mean  to  do  evil  with  it  before 
you  get  it  into  your  hands.  For  one  ought  not  to  disclose 
his  mind,  but  should  resolve  to  seek  to  obtain  by  any  means 
what  he  desires.  For  it  is  enough  to  ask  arms  of  another 
without  telling  him  that  you  mean  to  kill  him  with  them,  since 
thus  you  will  be  able,  after  getting  the  arms  into  your  hand 
to  do  your  will."  These  are  specimens  of  a  want  of  reverence 
for  truth,  of  an  admiration  for  talent  so  great  as  to  excuse  its 
abuse,  and  of  a  belief  that  a  people  may  and  must  be  cajoled, 
which  is  as  much  opposed  to  freedom  as  to  morality.  How 
much  higher  are  the  principles  of  the  young  Neoptolemus  in 
the  drama  of  Sophocles,  where   he  feels  compunction  for  the 


152  POLITICAL   SCIENCE. 

trick  to  which  the  old  "  fox  "  Ulysses  has  led  him  to  give 
his  consent.  (Philoct.,  1049,  1224,  1249,  1270).  As  Words- 
worth says  of  Dion, 

"  Him,  only  him,  the  shield  of  Jove  defends 
Whose  means  are  fair  and  spotless  as  his  ends."* 

§6l. 

The  object  of  Grotius  was  not,  so  far  as  I  know,  in  any 
work,  to  construct  a  theory  of  the  state.     In  his 

Grotius.  .  .  in-  -i  1  • 

treatise  Ue  jure  belli  et  pacis,  he  discusses 
rather  questions  of  natural  law  and  of  justice.  In  the  proleg- 
omena of  that  work  we  find  statements  relating  to  human 
nature  and  to  the  moral  necessity  of  fulfilling  promises  which 
are  important  for  the  theory  of  the  state  as  well  as  for  the 
doctrine  of  justice.  In  §  6  he  says  that  "  among  the  proper- 
ties peculiar  to  man  is  the  appetite  for  society,  that  is,  not  for 
any  and  every  kind  of  community,  but  for  a  tranquil  one,  for 
one  suited  to  his  kind  of  intelligence  ;  "  and  therefore  the  asser- 
tion that  every  animal  by  nature  is  led  on  only  towards  its 
own  advantages,  if  applied  to  man  cannot  be  regarded  as  true. 
§  8.  "This  tendency  toward  the  conservation  of  society, 
which  is  in  accordance  with  the  nature  of  man,  is  the  fountain 
of  that  jus  which  is  properly  so  called."  Under  this  he  in- 
cludes the  not  taking  what  is  another's,  the  restitution  of  it  or 
of  the  gain  from  it,  the  fulfilment  of  promises,  the  reparation 
of  wrongs,  and  the  desert  (i.  e.,  the  recognition  of  the  de- 
sert) of  punishment.  §15.  "  Since  it  belongs  to  the  jus  natu- 
rale  to  stand  to  an  agreement  (for  some  way  of  obligating  men 
to  one  another  was  necessary  and  no  other  was  conceivable), 
civil  rights  were  derived  from  this  fountain.  For  they  who 
had  joined  any  society  or  subjected  themselves  to  any  man  or 
men — these  either  did  this  by  an  express  promise  ;  or,  by  the 
nature  of  the  transaction,  ought  to  be  understood  as  promis- 
ing that  they  would  follow  that,  which  cither  the  major  part 

*Comp.  Vorlander,  "Gesch.  d.  philos.  moral,  rechts  u.  staatslehre 
der  Engl.  u.  Franzosen  mit  einschluss  Macchiavellis." 


OPINIONS   ON   THE   STATE.  1 53 

of  the  society,  or  those  to  whom  power  had  been  committed 
should  determine."  In  this  important  passage  he  must  be 
understood  as  explaining  political  obligations  by  tacit  consent 
to  comply  with  the  will  of  the  majority  or  the  ruler.  He  thus 
furnishes  a  ready  fiction  to  explain  the  origin  of  the  state  as 
well  as  of  the  laws  and  constitution.  In  this,  doubtless,  he 
follows  earlier  writers  on  natural  law  and  civil  obligations. 
Thus  the  original  source  of  natural  law  is  not  utility,  as  Car- 
neades  the  Academic  asserted  (§  16),  but  the  nature  of  man 
itself,  which  would  lead  us  towards  society,  although  we 
needed  from  society  no  supply  of  our  other  wants.  Natural 
law,  however,  finds  a  help  and  an  accessory  in  utility  ;  our 
wants  impel  us  to  society  that  we  may  the  more  cling  to  it ; 
and  as  by  compact  the  individual  obligates  himself  to  obey 
the  law  of  the  society,  so  societies  or  nations  in  the  same  way 
are  united  by  the  law  of  nations.  Natural  law  may  thus  be 
said  to  be  the  foundation  of  all  law,  in  so  far  as  the  provisions 
of  law  are  in  conformity  with  that  which  nature  points  out  for 
us. 

From  the  principle  of  natural  law  that  we  must  abide  by 
our  compacts,  it  will  follow  that  many  of  the  institutions  of 
man  are  according  to  natural  law.  (de  jure  b.,  i.,  1,  §  10,4.) 
Thus  property  (dominium),  as  it  now  is,  has  been  introduced 
by  human  will,  and  on  the  introduction  of  property  it  becomes 
wrong  for  me  to  seize  what  is  yours,  without  your  consent. 
And  yet  natural  law  is  so  immutable,  that  not  even  God  can 
change  it.  Thus,  though  there  is  a  jus  voluntarium  by  the  side 
of  the  jus  naturale,  the  latter  transfers  its  binding  force  to  the 
former,  since  consent  or  compact  is  by  natural  law  obligatory. 
(Comp.  I.,  1,  §  11.)  "  Voluntary  law  is  either  civil,  pertaining 
to  a  company  of  free  men  associated  for  the  purpose  of  enjoy- 
ing a  jural  condition  and  common  advantages,  or  to  states, 
all  or  many,  from  whose  will  it  receives  its  obligatory  force." 
(§  14.)  But  he  would,  without  question,  limit  voluntary  jus 
by  the  obligations  of  voluntary  law. 

The  association  of  free  men,  or,  as  he  says  (ii.,  5,  §  23),  one 
in  which  many  fathers  of  families  come  together  to  form  one 


154  POLITICAL   SCIENCE. 

people  and  state,  gives  the  highest  right  to  the  body  over  the 
parts,  for  this  is  the  most  perfect  society,  nor  is  there  any  ex- 
ternal action  of  man,  which,  of  itself  or  from  circumstances, 
may  not  have  a  regard  to  this  society.  "But  each  part  has 
its  rights,  so  that  if  a  part  of  a  state  is  alienated  it  must  agree 
to  the  alienation,  (ii.,  6,  §  4.)  For  they  who  unite  to  form 
a  state  contract  a  certain  perpetual  and  immortal  society,  as 
integral  parts  of  the  same  ;  whence  it  follows  that  these  parts 
are  not  so  subject  to  the  body  as  the  parts  of  the  natural 
body  are,  which  cannot  live  without  the  life  of  the  body  and 
therefore  may  be  rightfully  cut  away  for  the  body's  utility. 
But  the  body  in  question  is  of  another  kind,  brought  together 
by  will ;  and  thus  its  right  over  its  parts  must  be  measured  by 
its  primeval  will,  which  cannot  be  thought  to  have  been  such 
that  it  would  be  right  for  the  body  to  cut  off  parts  from  itself 
and  put  them  under  the  sway  of  another." 

This  will,  according  to  Grotius,  would  necessarily  limit  the 
public  power.  Yet  Grotius  is  not  unwilling  to  defend  the 
absolute  sovereign's  power  against  the  doctrine  of  the  sover- 
eignty of  the  people,  that  is,  against  the  opinion  of  those  (i.,  3, 
<§>  8,  1)  "  who,  without  exception  would  have  the  power  of 
the  people  supreme,  so  that  it  may  be  right  for  them  to  con- 
trol and  to  punish  even  kings  whenever  they  abuse  their 
power."  He  offers  two  arguments  against  this  opinion  :  one, 
that  a  people  can,  of  their  own  will,  subject  themselves  to  a 
ruler  without  conditions  ;  and  the  other,  that  they  may  be  sub- 
jugated in  a  war  otherwise  just.  If  this  seems  hard  doctrine 
to  be  received,  he  has  this  to  say,  that  whatever  government 
one  conceives  in  his  mind,  it  will  not  be  without  its  evils  and 
inconveniences,  (i.,  3,  §  8,  1,  et  seq.)  We  have  touched  al- 
ready on  one  of  his  opinions,  that  a  man  may  surrender  him- 
self up  to  be  a  slave.  (§  7.  2.)  Here  a  people  can  make  its 
own  slavery  a  jurally  right  condition.  Licet  homini  cuique 
se  in  privatam  servitutcm  cuivelit  addicere,  lit  ex  lege  Hcbrcea 
et  Romana  apparct  ;  quidni  ergo  populo  sui  juris  liccat  se  uni- 
cuipiam  aut  pluribns  ita  addicere,  tit  regendi  sui  jus  in  eum 
plane  transcribat,  nulla  ejus  juris  parte  rctcnta. 


OPINIONS   ON   THE   STATE.  1 55 

Hooker's  theory  of  the  ruler's  power,  which  was  indepen- 
dent of  that  of  Grotius,  and  actually  of  an  ear- 

Hooker-         ,.  •  •  I,       i  , 

her  date,  is  substantially  the  same  at  bottom. 

He  holds  that,  unless  it  proceeds    from    conquest,  or   from 

God's  special  appointment,  it  is  the  result  of  compact  between 

the  prince  and  the  people. 

But    it    is    not    necessary  that  there  should  be  a  compact 

between  every  successor  in  a  hereditary  line,  for  the  compact 

may  be  made  once  for  all  with  the  first  ruler.     Thus  he  says 

(Eccles.   pol.,   B.    viii.,  ch.  2,  §  8)  "we  do  not  construe  the 

king's  dependency  as   some  have    done,  who  are  of  opinion 

that  no  man's  birth   can  make  him   a  king,  but  [that]  every 

particular  person,  advanced  unto  such  [regal]  authority  hath 

at  his  entrance  into  his  reign  the   same  bestowed  on  him,  as 

an  estate  in  condition,  by  the   voluntary  deed  of  the  people, 

in  whom  it  doth  lie  to  put  by  any  one,  and  to  prefer  some 

other  before  him,  better   liked  of  or  judged    fitter   for   the 

place,"  etc.     This  was  the  opinion  advocated  in  the  viudicice 

contra  tyrannos   of  Junius  Brutus.   (Comp.  notes  in  Keble's 

Hooker,  iii.,  346-7.)     Hooker's  statement  of  his  own  views 

is  as  follows  (u.  s.,  §  9)  :    "  Albeit  we  judge  it  a  thing  most 

true  that  kings,   even  inheritors,  do   hold   their    right  to  the 

power  of  dominion  with  dependency  upon   the  whole  body 

politic  over  which  they  rule   as   kings  ;  yet  so  it  may  not  be 

understood  as  if  such  dependency  did  grow  for  that  [because] 

every  supreme  governor  doth  personally  take  his  power  from 

thence  by  way  of  gift,  bestowed    of  their   own  free  accord 

upon  him  at  the  time  of  his  entrance  into  his  said  place  of 

sovereign   government.     But  the  cause  of  dependency  is  in 

that  first  original  conveyance,  when  power  was  derived  by* 

the  whole  into  one,  to  pass  from  him  unto  them  whom  out  of 

him  nature  by  lawful  birth  should  produce,  and  no  natural  or 

legal  inability  [should]  make  uncapable."      "  Neither  can  any 

man  with  reason  think  but  that  the  first  institution  of  kings 

is   a   sufficient    consideration  wherefore   their  power   should 

always  depend  on  that  from  which  it  did  then  flow." 

*  Another  reading  is  "from." 


156  FOLITICAL   SCIENCE. 

He  then  asks  whether  a  body  politic  "  may  at  all  times 
withdraw,  in  whole  or  in  part,  that  influence  of  dominion 
which  passeth  from  it,  if  inconvenience  doth  grow  thereby." 
His  answer  is  that,  without  the  consent  of  the  supreme  gov- 
ernors, he  does  not  see  "how  the  body  should  be  able  by 
any  just  means  to  help  itself,  saving  when  dominion  doth 
escheat."  (§  10.)  In  the  next  section  he  lays  it  down  that 
in  power  of  dominion  all  kings  have  not  an  equal  latitude. 
"  Kings  by  conquest  make  their  own  charter."  "Kings  by 
God's  own  special  appointment  have  also  that  largeness  of 
power  which  he  doth  assign  or  permit  with  approbation, 
Touching  kings  which  were  first  instituted  by  agreement  and 
composition  with  them  over  whom  they  reign,  how  far  their 
power  may  lawfully  extend,  the  articles  of  agreement  between 
them  must  show  ;  not  the  articles  of  compact  only,  at  the  first 
beginning,  which,  for  the  most  part,  are  either  clean  worn  out 
of  knowledge,  or  else  known  unto  very  few ;  but  what- 
soever hath  been  after,  in  free  and  voluntary  manner,  con- 
descended unto,  whether  by  express  consent,  whereof  positive 
laws  are  witnesses,  or  else  by  silent  allowance,  famously 
notified  through  custom  reaching  beyond  the  memory  of 
man." 

Hooker  is  thinking  especially  of  English  royal  power,  but 
his  theory  of  compact  makes  any  rules  possible  which  are 
consistent  with  the  notion  of  such  power.  Thus  it  may  be 
election  by  compact  with  one  man,  or  hereditary,  as  if  it  were 
an  estate  transmissible  or  he  were  the  head  of  a  race  holding 
the  power  in  solidarity.  In  all  cases  a  violation  of  the  com- 
pact may  be  a  reason  for  the  reversion  of  the  power  to  the 
body  politic,  which  is  indeed  in  a  qualified  way  the  English 
doctrine.  Nor  in  modern  times  is  there  any  other  source  ; 
for  if  mere  conquest  were  one, it  would  cease  when  a  king  had 
been  conquered  by  the  body,  and  God  has  not  signified  his 
sanction  for  one  government  more  than  for  another. 

Hooker,  like  many  other  writers,  judges  of  a  compact  be- 
tween a  people  and  a  prince,  the  head  of  a  line,  after  the  an- 
alogy of  private  contract.     A  contract  to  hold  lands  by  tenant's 


OPINIONS   ON   THE   STATE.  1 57 

right,  transmissible  to  the  next  of  kin  in  the  male  line  perpet- 
ually, would  not  be  vitiated  if  the  next  of  kin  should  turn 
Roman  Catholic  ;  but  the  succession  to  the  English  throne 
would  pass  over  a  next  heir  who  should  do  this.  If  compact 
is  made  a  ground  of  political  right,  it  cannot  bind  for  all  time, 
nor  in  all  circumstances,  nor  even  in  all  changes  of  political 
opinion. 

$62. 

The  doctrine  of  the  state  in  most  of  the  subsequent  politi- 
cal theories  was  built  on  the  foundation  which 
Grotius  laid.  But  theorists  differed  in  regard 
to  the  part  of  human  nature  which  they  selected  as  giving  an 
impulse  to  the  formation  of  states.  A  theory,  remarkable  on 
account  of  the  eminence  of  the  author  as  well  as  on  account 
of  its  decidedly  positive  characteristics,  was  that  of  Hobbes, 
which  found  favor  also  with  a  still  more  eminent  man,  the. 
Dutch  Jew  and  Pantheist,  Spinoza.  The  views  of  Hobbes 
are  contained  in  the  de  Cive  (1642),  and  the  Leviathan  (165 1). 
The  former  may  be  found  in  Molesworth's  Hobbes'  Latin 
works,  vol.  ii.,  the  latter  in  vol.  iii. 

In  Hobbes'  view  the  starting-point  for  the  existence  of  or- 
ganized society  is  not  the  social  nature  of  man  nor  the  desire 
for  a  community-life,  but  selfishness.  Selfishness,  too,  he 
presents  to  us  in  one  of  its  most  unpleasant  shapes,  in  mutual 
fear.  Before  a  social  contract  all  men  had  equal  rights  to  all 
things.  Thus  "  all  had  an  equal  right  of  reigning  which  was 
coeval  with  nature  itself.  The  abolition  of  this  right  among 
men  was  due  to  mutual  fear."  For  war  was  necessarily  con- 
sequent upon  the  equality  of  men  in  regard  to  natural  strength 
and  power,  and  the  destruction  of  the  human  race  would  fol- 
low upon  war.  If,  however,  any  one  had  so  far  excelled  the 
rest  in  power  that  they  would  not  be  able,  even  with  their 
united  strength,  to  resist  him,  there  would  be  no  reason  why 
he  should  refuse  to  exercise  a  right  conceded  to  him  by  nature. 
Those,  therefore,  whose  power  cannot  be  resisted,  and  con- 


158  POLITICAL   SCIENCE. 

sequently  Almighty  God,  derive  the  right  of  ruling  from  power 
itself,     (de  Civ.,  iii.,  15,  §  5,  vol.  ii.,  p.  334-)* 

The  state  of  war  of  all  against  all  exists  not  because  there 
are  no  ethical  laws  of  nature — of  which  nineteen  are  mentioned 
by  our  author  (Leviath.,  xv.) — but  because  while  these  are 
obligatory  in  foro  intcrno,  to  respect  them  in  foro  externa, 
where  others  despise  them,  would  make  one  man  the  prey  of 
the  rest,  "  contrary  to  the  foundation  of  all  natural  laws,  to 
wit,  the  conservation  of  nature.  To  escape  from  this  misera- 
ble condition  is  impossible,  on  account  of  human  passions,  so 
long  as  there  is  no  visible  power  able  to  restrain  those  pas- 
sions, and  to  make  the  laws  of  nature  and  compacts  to  be  ob- 
served." (Leviath.,  xvii.)  Laws  and  facts,  of  themselves, 
cannot  bring  this  about.  Nor  can  security  be  gained  by  the 
agreement  of  a  few  men  with  one  another,  nor  by  a  temporary 
government.  Nor  again,  could  men,  like  some  animals, 
live  in  comparative  peace,  since  their  vast  and  various  desires, 
and  even  their  moral  nature,  as  making  them  susceptible  to 
a  sense  of  injury,  would  produce  dissensions.  "  The  only 
method  of  constituting  a  common  power,  able  to  preserve 
men  from  foreign  invasion  and  mutual  injuries,  is  for  each  one 
to  transfer  all  his  power  and  might  to  a  man  or  company  of 
men.  This  transfer  is  more  than  a  consent  ;  it  is  a  true  union 
of  all  in  one  person  made  by  a  part  of  each  with  each,  as  if 
each  should  say  to  each,  "  I  concede  to  this  man  or  this  com- 
pany my  authority  and  right  of  ruling  myself  on  this  condition, 
that  thou  also  transfer  to  the  same  person  all  thy  authority 
and  right  of  governing  thyself.  This  done,  that  multitude  is 
one  person.  And  this  is  the  generation  of  that  great  Levia- 
than, or,  to  speak  more  worthily,  that  mortal  God,  to  whom 
under  God  immortal  we  owe  all  our  peace  and  protection." 
(Leviath.,  xvii.,  pp.  130,  131.) 

*  Comp.  a  similar  place  in  Leviath.  xxxi.,  vol.  iii.,  p.  256.  "  Reg- 
ni  divini  naturalis  jus,  quo  Deus  illos,  qui  leges  naturales  violant, 
affligit,  non  ab  illo  derivatur  (mod  illos  creaverit  cum  non  essent,  sed 
ab  eo  quod  divina;  potentia?  resistere  impossibile  est." 


OPINIONS   ON   THE   STATE.  1 59 

But  another  subsidiary  pact  must  be  made  in  order  to  give 
the  pact  constituting  the  state,  force  ;  each  must  agree  to 
obey  the  man  or  company  of  men  for  whom  the  majority  of 
the  votes  are  cast.  No  one  can  pretend  to  have  made  a  pact 
with  God  inconsistent  with  this  social  pact.  "  For  a  pact 
with  God  can  be  made  only  through  the  mediation  of  some 
one  representing  God  ;  and  he  alone  does  this  who  under 
God  has  the  supreme  power."  (xviii.,  p.  133.)  Again, 
"  this  supreme  power  cannot  be  taken  from  the  holder  of  it, 
on  account  of  bad  administration  of  the  commonwealth.  For, 
in  the  first  place,  as  he  represents  the  state,  what  he  does  the 
state  does.  But  who  is  there  to  charge  the  state  with  crime  ? 
(Qui  autem  est  qui  civitatem  ream  faciet  ?)  Next,  he  on  whom 
the  supreme  power  is  conferred  makes  no  pact  with  any  of 
those  who  conferred  it,  and  therefore  can  do  no  injury  to 
any  one  for  which  he  should  be  deprived  of  his  power.  But 
if  we  were  to  concede  that  the  holder  of  supreme  power  could 
both  make  and  break  pacts  in  which  the  state  was  the  other 
party  ;  in  case  he,  when  he  had  broken  his  pact,  should  deny 
that  he  had  broken  it,  who  will  be  judge  in  the  question?" 
etc.  (ibid.)  Moreover,  "  since  each  of  those  who  conferred 
the  power  is  the  author  (the  responsible  cause)  of  all  the  ac- 
tions of  him  on  whom  the  power  was  conferred,  it  is  manifest 
that  no  injury  can  be  done  by  the  holder  of  power  to  the  con- 
ferrers  of  it.  I  cannot  deny  that  the  holder  of  supreme  power 
can  act  inique.  For  that  which  is  done  against  the  law  of  na- 
ture is  iniquum,  but  that  which  is  done  against  civil  law  is  in- 
jnstum.  Namjustiun  ant  injustum  ante  civitatem  constitutam 
nonerat"  (p.  135.)  Accordingly  the  supreme  ruler  cannot  be 
killed  or  otherwise  punished  by  the  citizens  ;  he  must  judge  of 
the  measures  necessary  for  peace  and  defence  ;  must  determine 
how  far  meetings  of  the  people  may  be  held  or  addressed, 
to  what  censure  books  must  be  subjected,  and  whether  they 
may  be  published  ;  must  determine  private  rights  and  have 
in  his  hands  the  right  of  judicial  decision,  that  of  declaring 
war  and  making  peace,  and  that  of  appointing  all  councillors, 


l6o  POLITICAL   SCIENCE. 

magistrates,  and   ministers  of  war  and  of  peace,  etc.     (pp. 

135-138')* 

The  Leviathan  may  be  a  man  or  a  company  of  men,  or 
rather  it  is  the  state  represented  in  either  way.  Hobbes  pre- 
fers a  monarchy,  in  which  the  power  of  the  ruler  is  not  cir- 
cumscribed ;  and  as  to  the  succession,  he  says  :  "  Perfccta 
civitalis  forma  esse  non  potest,  ubi  successorcm  eligcndi  jus  non 
sit  in  auteeessore."  (xix.,pp.  146-148.)  Of  absolute  power 
he  says  that  the  principal  objection  against  it  is  drawn  from 
that  which  is  wont  to  happen,  and  it  comes  from  them  who 
ask,  where  and  when  absolute  power  has  been  acknowledged 
by  its  subjects.  "  But  I,  in  my  turn,  ask  them,  where  and  when 
a  state  free  from  sedition  and  civil  war  has  existed,  in  which 
the  power  has  not  been  absolute.  In  those  nations  where 
states  have  lasted  long  and  only  been  destroyed  by  foreign 
enemies,  the  subjects  never  disputed  about  the  power  of  their 
princes.  The  science  of  founding  and  preserving  states  "  has 
its  certain  and  infallible  rules  no  less  than  arithmetic  and 
geometry  ;  nor  is  it  dependent  on  experience  alone.  These 
rules  the  poor  have  no  leisure  to  think  out,  nor  have  persons 
with  the  leisure  and  a  will  fitted  for  this  understood  by  what 
method  it  ought  to  be  done"  (xx.,  p.  159) — a  striking  pas- 
sage as  explaining  in  part  Hobbes  leaning  toward  theories 
of  absolute  power  by  the  civil  wars  during  which  it  was 
written. 

In  respect  to  religious  power,  Hobbes  held  that  "  the  right 
of  judging,  what  doctrines  are  useful  for  the  conservation  of 
peace  and  ought  to  be  publicly  taught,  belongs  inseparably  to 
the  civil  power."  (Leviath.,  xlii.,  p.  396.)  "  He  who  is  chief 
ruler  in  any  Christian  state  is  also  chief  pastor,  and  the  rest  of 
the  pastors  arc  created  by  his  authority.  Hence,  it  follows  that 
they  are  his  ministers  only,  just  as  those  who  are  set  over 
states,  provinces,  or  towns.  In  a  state,  therefore,  where  a 
foreign  person  [as  the  Pope]  appoints  pastors,  he  does  it  not 

*  A  striking  protest  against  divided  power  (p.  138),  contains  a  ref- 
erence to  the  civil  war  then  in  its  course. 


OPINIONS   ON   THE   STATE.  l6l 

in  his  own  right,  but  in  the  right  of  him  who  rules  over  that 
state.  If,  therefore,  a  person  seeing  a  pastor  preaching  or 
baptizing  should  ask  him,  as  the  priests  and  ciders  asked 
Christ  (Matth.  xxi.,  23),  '  by  what  authority  doest  thou  these 
things  and  who  gave  thee  this  authority  ?  '  he  could  return  no 
other  answer  than  that  he  acted  by  the  authority  of  the  state 
drawn  from  him  who  represents  it  or  sustains  its  character." 
p.  398. 

This  may  be  enough  to  set  forth  the  opinions  of  Hobbes. 
Spinoza  does    not   essentially   differ  from    him 

Spinoza.  *  _  ' 

either  in  regard  to  the  conception  of  jus  or  in 
general  results,  except  that  he  prefers  the  republican  form  of 
government  to  the  absolute  power  of  one  will.  A  few  pas- 
sages, from  hisTractatus  Theologicus  Politicus,  first  published 
in  1670,  but  suppressed  by  public  authority,  and  from  his 
Tractatus  Politicus,  which  saw  the  light  after  his  death  in  1679, 
will  best  set  forth  his  theory.*  A  comparison  between  the 
views  of  these  writers  has  been  drawn  by  Hartenstein  in  his 
Histor.  Philosph.  Abhandlungen,  pp.  217-240,  which  have 
been  of  great  service  in  the  preparation  of  this  sketch. 

By  the  terms  jus  nature?  Spinoza  means  the  laws  of  nature 
in  themselves,  or  the  rules  according  to  which  all  things  take 
place,  that  is,  the  power  of  nature  itself.  The  jus  naturale  of 
the  whole  of  nature,  and  consequently  of  each  individual 
thing,  reaches  as  far  as  its  power.  Consequently,  whatever 
each  man  does  by  the  laws  of  his  nature — nay,  whatever  any 
individual  being  does,  whether  human  or  other,  and  among  hu- 
man beings,  what  an  idiot  or  madman  does — that  he  does  with 
the  highest  right.  (Tr.  P.  Th.,  xvi.,  §§  i~5)  This  is  what 
Paul  teaches,  who  denies  that  sin  exists  before  law,  that  is,  as 
long  as  men  are  considered  as  living  under  the  sway  of 
nature.  (Ibid.,  §  6.)     Hence,  the  jits  naturale  of  each  particu- 

*  The  first  of  these  treatises  may  be  found  in  Bruder's  edition  of 
Spinoza's  works  (Leipzig,  1846),  vol.  hi.,  and  the  other  in  vol.  ii. 
The  views  of  Spinoza,  with  which  we  are  chiefly  concerned,  may  be 
found  in  chap.  xvi.  of  the  first,  and  chap.  ii.  of  the  second  of  these 
treatises. 

II 


102  POLITICAL   SCIENCE. 

lar  man  is  not  defined  by  sound  reason,  but  by  desire  and 
power.  (§  7.)  Whatever  then  each  one,  considered  as  being 
under  the  sole  sway  of  nature,  holds  to  be  useful  to  himself, 
either  through  the  leadings  of  sound  reason  or  through  the 
violent  force  of  his  feelings,  it  is  lawful  for  him  to  desire  that 
sumnto  jure  natures,  and  to  get  possession  of  for  himself  by 
any  method,  be  it  by  violence  or  fraud  or  entreaty,  or  in  what- 
ever way  he  most  easily  can  ;  and  consequently  it  is  right  for 
him  to  regard  as  an  enemy  him  who  wishes  to  prevent  him 
from  satisfying  his  desires.  (§  8.)  So  he  says  in  the  Tract. 
Polit,  ii.,  ^>  8,  that  "  it  is  the  law  and  institution  of  nature, 
under  which  all  men  are  born,  and  in  great  part  live,  to  pro- 
hibit nothing  but  that  which  no  one  desires  and  none  has 
power  to  do,  and  to  turn  away  from  nothing — not  from 
strifes  nor  hatreds  nor  anger  nor  fraud,  and  absolutely  from 
nothing — to  which  appetite  prompts.  Nor  is  this  to  be  won- 
dered at ;  for  nature  is  not  shut  up  within  the  laws  of  human 
reason,  which  aim  at  nothing  save  the  true  utility  and  con- 
servation of  men,  but  includes  other  laws  without  number, 
which  have  respect  to  the  eternal  order  of  the  entire  whole  of 
nature,  of  which  man  is  a  small  part."  Whatever  then  in 
nature  seems  to  us  ridiculous,  absurd,  or  evil,  this  opinion  is 
due  to  the  fact  that  we  know  things  only  in  part,  and  are  in 
great  measure  ignorant  of  the  order  and  coherence  of  the 
whole  of  nature  and  wish  to  have  all  things  controlled  ac- 
cording to  the  judgments  of  our  reason."  (§  8,  also  Theol. 
Pol.,  xvi.,  9-1 1.) 

To  live  under  such  a  jus  naturale  is  very  undesirable,  and 
no  one  can  doubt  that  the  dictates  of  reason  point  at  a  better 
kind  of  life  ;  no  one  can  help  wishing  to  live  securely  without 
fear,  which  it  is  impossible  to  do,  so  long  as  each  may  do 
what  he  pleases  and  no  more  authority  is  conceded  to  reason 
than  to  hatred  and  anger.  But  to  attain  to  a  secure  life  without 
fear,  mutual  agreement  is  necessary.  (Theol.  Pol.,  u.  s.,  §  13.) 
For  surely  the  life  in  statu  naturali  must  be  miserable,  since 
men,  "  being  more  prone  to  anger,  envy  and  hatred,  and  also 
more  cunning  than   other  animals,  are  by  nature   [mutual] 


OPINIONS   ON   THE    STATE.  163 

enemies,  for  he  is  my  greatest  enemy  from  whom  I  have 
most  to  fear."  (Tr.  Polit.,  ii.,  §  14.)  "  From  this  condition 
men  are  rescued  by  an  agreement  to  the  effect  "  ut  jus, 
quod  unusquisque  ex  natura  ad  omnia  habebat,  collective  ha- 
bere ut,  nequc  amplius  ex  vi  ct  appctitn  unius  cujusque,  sed  et 
omnium  simul  potcntia  et  voluntate  determinaretur.  (Tr. 
Theol.  Pol,  xvi.,  §  13.) 

But  how  can  such  an  agreement  or  compact  be  made,  con- 
sistently with  jus  naturale,  as  Spinoza  conceives  of  it  ?  Only 
by  a  conviction  that  some  greater  good  is  to  be  gained  by 
passing  into  another  state  which  is  created  by  a  transfer  of 
power.  By  such  a  transfer  of  power  to  another,  whether 
made  under  compulsion  or  voluntarily,  the  person  making 
the  transfer  yields  to  him  so  much  jus  ;  so  that  he  who  has 
the  supreme  power  has  supreme  right  over  all  {summum  jus 
in  omnes),  and  thus  is  enabled  to  compel  all  by  force  and  to 
hold  them  in  check  by  fear  of  the  highest  penalty  which  all 
dread,*  "  which  jus  he  will  hold  in  his  hand,  so  long  as  he 
shall  keep  this  power  of  carrying  out  whatever  he  will.  Other- 
wise he  will  have  a  precarious  sway,  and  no  stronger  person 
will  beheld,  unless  he  chooses,  to  compliance  with  his  demands." 
(ibid.,  §  24.)  No  power  and  therefore  no  jus  is  retained  by  the 
individual  after  this  transfer.  "  Every  one  transfers  to  society 
all  the  power  he  has,  so  that  society  alone  will  retain  summum 
jus  in  omnia,  hoc  est,  summum  imperium;"  (§  25.)  The  jus 
of  such  a  society  is  called  democratic/.,  which  accordingly  is 
denned  ccetus  universus  hominum,  qui  collegialiter  summum 
jus  ad  omnia  quae  potest, habet.     (ibid.,  §§  25,  26.)     "From 

*The  expression  of  Spinoza,  "  in  alterum  vel  vi  vcl  sponte  trans- 
fert"  (§  24),  is  remarkable,  as  Hartenstein  observes  (u.  s.,  p.  225), 
because  it  suggests,  although  only  in  a  cursory  way,  another  origin 
of  power  besides  transfer  by  voluntary  compact.  How  can  lie,  or 
that  portion  of  a  body  of  men  that  is  really  powerful,  be  expected  to 
wait  in  the  status  naturalis,  until  the  rest  enter  into  terms?  As  for 
the  terms,  they  are  just  as  binding,  on  Spinoza's  principles,  as  the 
most  voluntary  compact  possible  could  be.  A  choice  of  evils  deter- 
mines the  transfer  of  power  in  both  cases.  The  power  of  the  supe- 
rior is  his  jus.  Thus  we  come  upon  the  grounds  of  the  Greek 
sophists.      Comp.  Plat.,  Gorg.,  p.  491  E.  onw. 


164  POLITICAL   SCIENCE. 

this  it  follows  that  a  supreme  power  is  bound  by  no  law,  and 
that  all  ought  to  obey  it  in  all  things ;  for  this  they  ought 
to  have  promised  tacitly  or  expressly  when  they  transferred 
to  it  all  their  power  of  defending  themselves,  that  is,  all  their 
jus.  For  if  they  wished  to  reserve  any  jus  for  themselves, 
they  were  bound  at  the  same  time  to  take  security  so  as  to  be 
able  to  defend  it ;  but  since  they  did  not  do  this,  and  could 
not  do  it,  without  a  division  and  consequently  without  a 
destruction  of  public  power,  by  that  very  act  they  submitted 
themselves  to  the  will  and  pleasure  of  the  supreme  power, 
(ibid.,  §§  26,  27.)  Of  this  absolute  subjection  he  speaks  in 
the  Tract.  Polit.  (iii.,  §  5)  as  follows  :  "  We  see,  therefore, 
that  every  citizen  is  not  under  his  own  but  under  the  state's 
control  ;  all  whose  commands  he  is  bound  to  execute  without 
having  any  right  of  deciding  what  is  equitable,  what  is  inequi- 
table, what  is  sanctioned  by  religion,  what  forbidden  {quid 
pi  inn,  quidve  impium  sit).  But,  on  the  contrary,  inasmuch 
as  the  body  over  which  public  power  is  exercised  ought  to 
be  led  by  one  mind,  so  to  speak,  and  consequently  the  will 
of  the  state  is  to  be  accounted  the  will  of  all ;  that  which  the 
state  decrees  to  be  just  and  good  is  to  be  regarded  as  decreed 
by  each  individual.  And,  although  a  subject  may  think  the 
decrees  of  the  state  unrighteous,  he  is  bound  nevertheless  to 
execute  them." 

We  have  thus  a  close  agreement  so  far  between  the  politi- 
cal theories  of  these  two  remarkable  men.  But  Spinoza  seems 
to  qualify  his  doctrine  by  the  remark  (Tract.  Polit.  Theol., 
xvii.,  §  2),  "  that  no  one  can  ever  transfer  his  power,  and  con- 
sequently his  jus  to  another,  so  far  as  to  cease  to  be  a  man  ; 
nor  will  any  such  supreme  power  be  given  as  can  execute  all 
things  according  to  its  pleasure."  He  seems  here  to  flee  from 
theory  to  facts,  and  he  says,  in  so  many  words,  that  his  doc- 
trine "must  in  many  things  remain  merely  theoretical." 
(ibid.,  §  1.)  A  state  has  grounds  of  fear  for  its  existence,  as 
well  as  an  individual  in  his  condition  of  nature.  "  If  it  were 
as  easy  to  rule  over  minds  as  over  tongues,  every  ruler  would 
reign  safely,  and  no  public  power  would  rest  on  violence." 


OPINIONS   ON   THE   STATE.  165 

(ibid.,  xx.,  §  1.)  Spinoza  would  have  the  institutions  of  out- 
ward religion  placed  in  the  hands  of  the  chief  authorities  of 
states,  but  thought  and  the  expression  of  it  free.  (Chapters 
xix. ,  xx.)  In  fact,  "finis  rcipublicce  re  vera  liber tas  est."  And 
he  limits  power  by  the  remark  that  he  would  allow  to  the  su- 
preme magistrate  in  any  city  no  more  right  over  his  subjects 
than  accords  with  the  measure  of  the  power  by  which  he  is 
superior  to  the  subject.* 

In  these  theories  of  two  eminent  thinkers  there  is  a  concep- 
tion of  jus  as  equivalent  to  power,  which  divests  it  of  moral 
quality.  Their  state  of  nature  is  an  unreality,  not  possible 
since  the  condition  of  parents  and  children  began  to  exist 
and  broadened  itself  into  natural  associations  or  tribes.  The 
motive  for  seeking  some  new  order  of  things,  a  social  order, 
is  simply  self-preservation,  or  fear,  and  no  moral  or  social 
principle  is  taken  into  view.  The  means  is  compact,  which 
has  no  binding  force  when  the  utility  to  be  gained  by  break- 
ing the  compact  is  greater  than  by  keeping  it.  The  process  of 
formation  of  a  state  is  a  transfer  of  power  and  right,  by  which, 
according  to  Hobbes, — and  logically, — an  irresponsible  sover- 
eign is  created,  who  has  all  political  authority,  and  whose 
servants  all  functionaries  are,  whether  civil,  military,  or  relig- 
ious. And  yet  at  the  end  nothing  of  perpetuity  is  gained  for 
the  state,  unless  the  compact  itself  has  the  force  of  moral  ob- 
ligation. For  any  new  power  that  can  overturn  the  old  one 
has  by  that  fact  the  right  to  exist. 

*  From  Epist.  50  (ii.,  298,  ed.  Bruder),  to  which  Hartenstein  calls 
attention,  Spinoza  is  asked  wherein  he  differs  from  Hobbes,  and  re- 
plies, "  quantum  ad  politicam  spectat,  discrimen — in  hoc  consistit, 
quod  ego  naturale  jus  semper  sartum  tectum  conservo,  quodque  su- 
premo magistratui  in  qualibet  urbe  non  plus  in  subditis  juris,  quam 
juxta  mensuram  potestatis  qua  subditum  superat,  competere  statuo  ; 
quod  in  statu  naturali  semper  locum  habet."  I  am  not  sure  that  I 
understand  these  words,  but  if  I  do  they  are  an  accommodation  of 
theory  to  fact  ;  for  the  theory  requires  the  transfer  of  all  jus  and 
consequently  of  z\\  potestas  to  the  supreme  power,  so  that  in  all  cases 
the  measure  of  jus  which  it  has  over  subjects  is  the  same. 


166  POLITICAL   SCIENCE. 


$63. 
A    contemporary   of  Hobbes,    Sir    Robert    Filmer,  wrote 
several  treatises    in   defence   of  the    monarch's 

Sir  Robert  Filmer. 

absolute  power  ;  as  the  "  anarchy  of  a  mixed 
and  limited  monarchy  "  (1646),  "  necessity  of  the  absolute 
power  of  all  kings,  and  in  particular  of  the  king  of  Eng- 
land "  (1648),  "original  form  of  government  against  Milton, 
Hobbes,  Grotius,"  etc.,  and  "  Patriarcha  or  the  natural  power 
of  the  kings  of  England  asserted,"  the  latter  published  in 
16S0,  long  after  his  death  in  1647.  This  work  was  refuted  at' 
large  by  Locke  in  the  first  of  his  discourses  on  government, 
and  by  Algernon  Sydney  in  his  discourses  on  government, 
published  in  1698,  fifteen  years  after  his  execution.  The 
object  in  the  "  Patriarcha,"  which  has  now  become  a  curiosity 
of  political  philosophy,  was  to  support  actual  absolute  power 
by  deriving  it  from  patriarchal,  as  according  to  Mr.  Hallam 
(Hist,  of  Lit.,  iv.,  369)  had  been  attempted  in  what  is  called 
"  Bishop  Overall's  Convocation  Book  "  at  the  beginning  of 
the  reign  of  James  I.,  which,  however,  was  not  published 
when  Filmer  wrote.  The  main  points  in  the  patriarcha  are 
that  no  man  is  born  free,  that  all  lawful  government  is  mon- 
archy, and  all  monarchies  absolute.  In  proof  that  men  are 
not  born  free  he  alleges  the  subjection  of  the  child  to  the 
parent,  and  the  dominion  over  the  world  conferred  by  crea- 
tion and  donation  upon  Adam.  1.  The  relation  of  the  child 
to  the  parent  is  absolute.  But  this  is  false  according  to  Scrip- 
ture and  to  right  reason.  The  control  over  the  child,  as  we 
have  seen,  is  one  determined  by  the  moral  quality  of  the 
command,  varying  with  age  and  expiring  with  death.  It 
must  cease,  being  a  power  given  for  the  benefit  and  protec- 
tion of  the  child,  until  he  can  sustain  his  part  in  all  human 
offices  which  require  responsibility  and  free  action.  And 
again,  if  royal  power  were  in  succession  to  paternal  power, 
there  could  now  be  no  paternal  power,  unless  whatever  power 
parents  have  they  derive  by  grant  from  kings.  2.  Filmer's 
argument  from  creation  and  donation  is  to  be  met  by  a  flat 


OPINIONS   ON  THE  STATE.  167 

denial  that  he  understands  the  passage  aright  on  which  he 
bases  his  argument.  The  world  given  to  Adam  did  not  in- 
clude men  themselves,  but  the  materials  and  inferior  creatures 
in  the  world,  as  is  shown  by  the  eighth  Psalm,  where  the 
human  race  is  made  the  subject  of  the  power  spoken  of  in 
Genesis  and  referred  to  by  Filmer.  The  lordship  over  the 
earth  therefore  passed  to  all  Adam's  descendants  and  not  to 
his  eldest  son.  3.  The  patriarchal  power  was  of  natural 
growth,  but,  when,  established  was  liable  to  interruptions  and 
modifications.  For  instance,  if  the  patriarch  died  after  most 
of  his  children,  leaving  only  a  young  son,  does  any  one 
imagine  that  in  a  state  of  society,  when  experience  and 
knowledge  of  precedent  was  everything,  the  tribe  would  not 
have  interfered,  and  broken  the  succession  by  the  choice  of  a 
new  leader  ?  4.  The  connection  between  kings  of  to-day  and 
the  patriarchs  is  entirely  untraceable.  5.  If  it  were  alleged 
that  the  power  and  authority  of  the  patriarch,  either  as 
having  grown  up  naturally  or  as  being  derived  from  Adam, 
were  legitimate  for  all  time  ;  it  might  be  replied  that  what  is 
true  of  the  first  stage  of  human  society  does  not  necessarily 
apply  to  a  subsequent  stage,  after  the  tribe  feeling  has  faded 
away,  any  more  than  we  can  reason  in  all  respects  from  the 
child's  condition  to  the  man's.  Filmer's  theory,  then,  rests 
on  a  misapplication  of  Scripture  and  on  the  assumption  that 
the  original  forms  of  human  authority  are  to  be  a  norm  for 
mankind  in  all  the  changes  of  human  society.  And  yet  it 
contains  a  grain  of  important  truth,  where  it  goes  back  to  the 
past  in  search  of  a  historical  right  of  states  to  their  existence.* 
Locke  has  had  a  wider  influence  on  English  political  think- 
ing than  either  the  want  of  originality  in  his 
Locke.  °  .    °  ,.  . 

views  or  the  amount  ot  his  writings  on  politics 

would  lead  us  to  expect.  In  his  theory  of  government  he 
supposes  a  social  compact  and  a  compact  between  the  people 
and  the  prince.     The  breach   of  this  latter   engagement    on 

*  Comp.  what  Mr.  Hallam  says  of  the  critique  of  this  patriarchal 
theory  by  Suarez,  written  long  before  Filmer's  time.  (Hist,  of  Lit., 
hi.,  355  et  seq.). 


1 68  POLITICAL   SCIENCE. 

the  part  of  the  prince  and  his  line  justifies  rebellion.  In  re- 
gard to  property,  as  we  have  already  seen,  he  introduced  or 
made  more  prominent  than  before  the  right  derived  from 
labor  employed  in  production.  In  his  theory  of  the  powers 
of  the  state  he,  more  than  any  of  the  earlier  writers,  showed 
the  importance  of  a  separation  of  government  functions. 
The  doctrine  of  a  compact  between  the  prince  and  the  people 
had  so  much  ground  for  it  in  the  early  practice  of  the  Ger- 
manic race  that  history  as  well  as  theory  could  be  pressed 
into  its  support.  It  was  formally  accepted  by  the  English 
Convention-Parliament,  when  it  was  voted  that  the  king 
had  endeavored  to  subvert  the  constitution  by  breaking  the 
original  compact  between  king  and  people. 

§64. 
In  the  age  of  Louis  XIV.,  where  Bossuet,  in  his  "  politique 
tiree  de  l'Ecriture,"  uttered  extravagant  senti- 

Montesquieu. 

ments  concerning  royalty,  and  could  say  that 
"kings  are  sacred  things,"  there  were  not  wanting  those  in 
France  who  felt  the  evil  of  the  absolutism  of  the  monarch. 
Fenelon  expressed  some  opinions  which  were  not  in  accord- 
ance with  the  reigning  politics.  He  declared  that  subjects 
ought  to  be  left  in  perfect  liberty  to  examine,  each  one  for 
himself,  the  authority  and  the  reasons  for  the  credibility  of  a 
revelation.  In  the  plans  of  government  which  were  to  be 
laid  before  the  Duke  of  Burgundy,  Fenelon  wished  meetings 
of  the  states  general,  to  which  some  of  the  members  should 
be  called  by  election,  as  of  old.  No  recommendation  of  the 
king  should  be  considered  a  command,  no  deputy  should  be 
perpetual.  It  was  for  such  faint  expressions  of  a  desire  for  a 
little  practical  liberty  that  he  fell  into  disgrace.  In  1724, 
not  long  after  the  death  of  Louis  XIV.,  the  Abbe  Alary 
founded  a  political  club — suppressed  by  public  authority  in  a 
few  years — called  the  Entresol  from  an  apartment  in  the  Place 
Vendome,  in  which  free  discussions  were  allowed,  and  of  which 
the  Marquis  d'Argenson,  the  Abbe  St.  Pierre,  Ramsay,  a 
friend  of  Fenelon,  who  wrote  as  an  expression  of  his  ideas 


OPINIONS   ON   THE   STATE.  169 

the  "  Essai  sur  le  gout)  eminent  civil"  and,  it  is  said,  Montes- 
quieu, were  members.  All  these  men  wanted  some  change 
in  the  government  of  France.  Montesquieu  in  his  "  Lettres 
Persanes,"  where  he  speaks  in  the  character  of  a  Persian, 
uses  quite  a  degree  of  disrespectful  liberty  towards  all  authori- 
ties, social  and  religious.  Such  expressions  as  "  the  corps 
of  lacqueys  is  more  respectable  in  France  than  elsewhere  ;  it 
is  a  seminary  of  grand  seigneurs  ;  it  fills  the  void  of  the  other 
estates  ;  "  and  as  "  the  dervishes  [priests]  have  in  their  hands' 
almost  all  the  riches  of  the  state,  it  is  a  society  of  greedy  per- 
sons who  always  take  and  never  restore,"  show  a  dissatisfac- 
tion with  the  condition  of  things  in  France  which  vented  itself 
in  biting  sarcasms.  These  letters  were  written  in  172 1  ;  the 
"  Considerations  on  the  causes  of  the  greatness  of  the  Romans 
and  their  decline"  appeared  in  1734,  while  the  "  Esprit  des 
lois  "  belongs  to  the  year  1748.  The  "  Spirit  of  the  Laws  " 
was  the  great  work  on  this  subject  which  the  eighteenth  cen- 
tury produced,  and  has  given  more  impulse  to  political 
thought  than  any  other  that  has  appeared  in  Europe.  It  is 
divided  into  twenty-eight  books,  the  first  of  which  briefly  de- 
fines law  and  states  the  subject  of  the  work.  "  Law  in  gen- 
eral," he  says,  is  human  reason — and  so  "  the  political  and 
civil  laws  of  each  nation  ought  to  be  only  the  particular  cases 
in  which  this  human  reason  is  applied."  ..."  They  ought  to 
be  adapted  to  the  nation  where  they  are  made,  and  it  is  there- 
fore unlikely  that  those  of  one  nation  should  be  proper  for 
another.  They  ought  to  be  conformed  to  the  nature  of  the 
various  governments,  to  the  climate,  manner  of  living,  degree 
of  liberty,  religion,"  etc.  He  does  not  separate  political  from 
civil  laws,  "  for,"  says  he,  "  as  I  do  not  pretend  to  treat  of 
laws  but  of  their  spirit,  and  this  spirit  consists  in  the  various 
relations  which  the  laws  may  have  to  different  things,  it  is  not 
so  much  my  business  to  follow  the  natural  order  of  laws  as 
that  of  relations  and  things."  This  is  a  vast  field,  and  when 
in  the  course  of  his  subject  he  inquires  into  the  influences 
which  different  forms  of  government  have  on  laws,  as  well  as 
the  other  influences  of  the  physical  and  moral  world,  he  comes 


I/O  POLITICAL   SCIENCE. 

into  a  thicket  which  he  could  not  thoroughly  explore.  We 
may  honor  him  for  being  the  first  in  modern  times  to  become 
aware  "  of  the  epoch-making  principle  " — I  use  the  words  of 
another — "  that  the  course  of  history  is  on  the  whole  deter- 
mined by  general  causes,  by  widespread  and  persistent  tend- 
encies, by  broad  and  deep  undercurrents;  and  only  influ- 
enced in  a  feeble,  secondary,  and  subordinate  degree  by  sin- 
gle events,  by  definite  arguments,  by  particular  enactments, 
by  anything  accidental,  isolated,  and  individual.  The  recog- 
nition of  this  principle  is  an  essential  condition  of  the  possi- 
bility of  a  science  of  history."  *  But  his  plan  almost  forced 
him  to  make  hasty  generalizations,  and  his  great  erudition 
could  not  save  him  from  accepting  as  true  many  unreliable 
assertions  of  the  ancients  or  of  travellers.  His  plan,  too 
seems  to  me  to  be  defective  in  this.  He  seems  to  suppose 
that  all  which  we  need  to  know  of  the  different  forms  of  gov- 
ernment, in  order  to  be  sure  of  the  manifestation  of  their  na- 
ture in  particular  laws,  can  be  supplied  to  us  by  a  few  hasty 
remarks.  He  does  not,  thus,  offer  us  a  science  of  govern- 
ment, but  historical  statements  respecting  their  influences  and 
other  influences  upon  them.  Thus  he  says  that  "  suffrage 
by  lot  is  natural  to  democracy,  as  that  by  choice  is  to  aristoc- 
racy." (Book  ii.,  ch.  2.)  But  this  is  a  very  loose  generaliza- 
tion, founded  on  Aristotle's  remark  relating  to  a  degenerate 
democracy.  Have  there  not  been  many  democracies  where 
choice  and  not  lot  determined  who  should  fill  the  offices  of 
state  ?  Has  any  one  ever,  in  the  most  modern  democracies, 
moved  seriously  for  the  lot  ?  Or  did  all  the  ancient  democ- 
racies come  into  this  plan  ?  So  his  division  of  governments 
into  three  species  is  exposed  to  criticism,  (ii.,  I.)  They  are 
the  republican,  monarchical,  and  despotic.  Here  under  a  re- 
public he  classifies  both  aristocracy  and  democracy,  and  yet 
in  the  third  book,  when  he  comes  to  his  celebrated  discussion 
of  the  principles  of  the  several  forms,  he  makes  the  principle 
of  democracy  virtue,  and  that  of  aristocracy  moderation.      He 

*  Prof.  Flint's  Philos.  of  Hist.,  i.,  105. 


OPINIONS   ON   THE   STATE. 


171 


thus  practically  makes  four  classes  of  forms,  but  in  so  doing 
makes  a  distinction  of  species  between  his  monarchy  and  his 
despotism.  Nor  is  he,  so  far  as  I  know,  alive  to  the  great 
importance  of  the  modern  distinctions  between  absolute  and 
free  or  limited  government,  or  between  those  where  power  is 
centralized  and  those  where  it  is  diffused,  or  to  Aristotle's 
distinction  between  the  incorrupt  and  the  degenerate  polities, 
or  to  the  peculiarity  of  city-states  as  compared  with  those 
which  spread  over  a  large  area.  But  he  is  aware  that  "  demo- 
cratic and  aristocratic  states  are  not  necessarily  free  "  (xi.,  4), 
and  was  the  first  on  the  continent  to  urge  the  model  of  Eng- 
land upon  the  French,  especially  as  it  respects  the  division 
and  independence  of  the  three  powers  or  functions  of  a  state. 
Yet  he  seems  to  have  no  just  view  of  the  weight  which  an  in- 
dependent judiciary  has  in  the  constitutional  scale.  Montes- 
quieu may  be  said  to  have  formed  his  politics  by  a  study  of 
English  government  and  history  ;  and  his"  Spirit  of  the  Laws," 
by  its  liberal  antidespotical  tone,  became  the  bridge  over  which 
French  thinking  passed  from  the  opinions  of  the  age  of  Louis 
XIV.,  to  those  of  the  age  of  Voltaire,  Rousseau  and  Turgot. 
In  Italy  Beccaria  caught  his  spirit.* 

*  Compare,  as  far  as  Montesquieu's  method  leads  him  to  express 
historical  views,  Prof.  Flint's  estimate  of  him  in  his  Philosophy  of 
History,  Book  1,  chap.  3,  from  which  we  have  had  occasion  to  cite  a 
passage.  In  the  preface  to  his  translation  of  Aristotle,  Barthelemy- 
Saint-Hilaire  reviews  some  of  Montesquieu's  opinions  with  some  just 
severity,  (pp.  lxxxi-cvi.)  For  a  more  extended  history  of  the  opin- 
ions of  Montesquieu  and  his  school  we  refer  the  reader  to  Paul 
Janet's  Histoire  de  la  Science  Politique,  ed.  2,  vol.  ii.,  416-557. 
May  we  be  allowed  to  make  the  confession  that  we  have  sometimes 
come  away  from  consulting  Montesquieu  rather  with  perplexity  and 
doubt  of  the  justice  of  his  historical  deductions  than  with  satisfaction  ? 
The  cause  of  this  perplexity  and  doubt  is,  I  believe,  that  he  looks  at 
the  manifestations  of  political  institutions,  rather  than  at  their  nature, 
at  the  differences  of  laws  rather  than  at  the  underlying  principle  com- 
mon to  all ;  he  is  historical,  and  not  enough  philosophical.  Sir  H. 
S.  Maine  somewhere  makes  the  remark  that  he  calls  attention  to  the 
elements  of  change  in  political  society,  as  if  there  were  no  constant 
principle  below  the  variable  forces.  This  and  the  uncertainty  of  the 
reader  whether  he  has  hit  on  the  right  causes  of  peculiarities  in  laws 


1/2  POLITICAL   SCIENCE. 

Rousseau,  whom   Burke   saw  repeatedly  when  he  was    in 
Rousseau.  The    England,  and    calls    "  the  great   professor  and 
conu-at  social.  founder  of  the   philosophy  of  vanity,"    had    a 

much  more  marked  influence  on  France  than  the  British 
statesman  had  on  England.  His  views  are  contained  in  the 
"  discours  sur  l'origine  et  le  fondement  de  l'ine'galit.e  parmi 
les  hommes  (1754)  ;  "  "  du  contrat  social,  ou  principes  du 
droit  publiques  (1761)  ;  "  and  "  Emile,  ou  l'education,  1762." 
Rousseau  had  the  same  inheritance  of  political  opinions 
which  Locke  and  so  many  others  had  received  before,  of 
natural  freedom  limited  by  contract  and  of  the  right  to  recall 
transferred  power.*  But  his  peculiarities  also  were  great, 
and  he  gave  a  new  shape  to  political  theories  as  they  passed 
through  his  hands.  The  doctrine  from  which  he  starts  is  the 
inalienability  of  freedom, — that  not  only  another  may  not 
enslave  you,  but  that  you  cannot  lawfully  enslave  yourself, — 
contrary  to  the  opinion  of  Grotius  that  a  man  or  a  state 
might  resign  his  liberty  and  be  reduced  to  servitude.  This 
being  established,  the  problem  is  to  find  some  form  of  asso- 
ciation in  which  freedom  will  not  be  alienated,  in  which  every 
man,  while  he  obeys  the  state,  obeys  himself  and  is  as  free 
as  before,  f  There  is  no  right  of  the  stronger.  "  Force  is  a 
physical  power.  I  do  not  see,''  says  Rousseau,  "  what 
morality  can  result  from  its  effects.  To  cede  to  force  is  an 
act  of  necessity,  not  of  will.  It  is  at  the  most  an  act  of  pru- 
dence.    In  what  sense  can  this  be  a  duty  ?  "     "  If  one  must 

and  institutions,  with  a  method  of  arrangement  which  Saint-Hilaire 
speaks  of,  are  very  serious  defects  in  one  of  the  most  important 
works  of  modern  times.  Yet  no  one  in  the  eighteenth  century  went 
over  so  vast  a  field,  or  so  stimulated  political  inquiries  as  he  ;  nor 
has  any  French  writer  in  his  department  retained  so  much  of  the  re- 
spect of  posterity. 

*  I  cite  the  contrat  social  by  book  and  chapter.  The  pages  are 
those  of  the  Paris  edition  of  Rousseau's  works,  1827. 

fComp.  for  the  critique  of  Rousseau's  doctrine,  Ch.  Comte,  Traite 
de  Legislation  (4  vols.,  ed.  2,  Paris,  1835)  in  vol.  i.,  B.  1,  Ch.  n,  12. 


OPINIONS   ON   THE   STATE.  173 

obey  by  force,  there  is  no  need  of  obeying  from  duty  ;  and  if 
one  is  no  longer  forced  to  obey,  he  is  no  longer  obligated." 
(B.  i.,  Chap.  3.)  A  people  can  give  itself  up  to  a  king,  says 
Grotius.  If  so,  it  was  a  people  before  its  submission.  Hence 
we  must  go  to  the  beginning,  and  inquire  how  it  became  a 
people,  what  was  the  act  necessarily  anterior  to  the  other,  and 
the  true  foundation  of  the  society,  (i.  5-)  "  In  fact,  without 
a  prior  convention,  where  would  there  be  an  obligation,  if 
the  election  were  not  unanimous,  for  the  smaller  number  to 
submit  to  the  choice  of  the  greater  ?  The  law  of  the  plurality 
of  suffrages  is  itself  an  establishment  due  to  agreement,  and 
supposes,  at  least  on  one  occasion,  unanimity."     (ibid.) 

Rousseau  assumes  a  state  of  nature,  and  such  a  condition 
of  things  in  that  state  that  the  obstacles  to  the  self-conserva- 
tion of  men  in  it  have  more  force  than  their  struggles  on  the 
opposite  side.  As  no  new  forces  can  be  called  into  existence, 
their  only  means  of  self-conservation  is  to  use  their  actual 
powers  in  concert.  Their  instruments  for  their  conservation 
are  force  and  liberty.  The  problem  then  becomes  this  :  "to 
find  a  form  of  association  which  defends  and  protects  the  per- 
son and  goods  of  each  associate  with  the  help  of  the  whole 
common  force  ;  and  by  means  of  which  each  one,  uniting 
himself  to  all,  obeys  only  himself  for  all  that,  and  is  as  free 
as  before."  The  social  contract  solves  this  fundamental  prob- 
lem. "  The  nature  of  the  act  so  determines  the  clauses  of 
this  contract  that  the  least  modification  would  render  them 
vain  and  of  none  effect. — They  are  everywhere  the  same, 
everywhere  silently  admitted  and  acknowledged,  so  that 
upon  a  violation  of  the  social  pact,  every  one  then  goes 
back  into  his  original  rights  and  resumes  his  natural  liberty, 
while  he  loses  the  conventional  liberty  for  which  he  renounced 
it."  (i.,6.)  "  The  clauses,"  or  articles,  "  of  this  pact  may  be 
reduced  to  a  single  one  :  to  wit,  the  total  alienation  of  each 
associate  with  all  his  rights  to  the  community.  This  aliena- 
tion is  equal  for  all,  and  is  made  without  reservation.  In  giving 
himself  to  all  each  one  gives  himself  to  no  particular  person. 
And  as  he  acquires  over  every  associate  the  same  right  that 


174  POLITICAL   SCIENCE. 

each  yields  to  him,  he  gains  an  equivalent  for  what  he  loses 
together  with  more  power  to  keep  what  he  has.  The  essence 
of  the  pact  then  consists  in  this  :  "  each  one  of  us  in  common 
puts  his  person  and  all  his  power  under  the  supreme  direction 
of  the  general  will  ;  and  we  receive  it  back  again,  each 
member,  as  an  indivisible  part  of  the  whole."  "Thus  is  pro- 
duced a  moral,  collective  body,  which  derives  from  this  act 
its  unity,  its  common  personality  (son  moi  commun),  its  life, 
its  will."     (ibid.) 

In  this  pact  a  tacit  understanding  is  contained  that  a  per- 
son refusing  to  obey  the  general  will  shall  be  constrained  to 
do  this  by  the  body  ;  which  means  nothing  more  than  that 
he  will  be  compelled  to  be  free,  (i.,  7.)  "  This  passage  from 
the  natural  to  the  civil  state  produces  in  man  a  very  remark- 
able change,  by  substituting  justice  for  instinct  in  his  conduct 
and  giving  to  his  actions  the  morality  which  was  wanting 
before.  Only  then,  as  the  voice  of  duty  takes  the  place  of 
physical  impulse,  and  right  that  of  appetite,  man,  who  thus 
far  had  considered  himself  alone,  finds  himself  forced  to  act 
on  other  principles,  and  to  consult  his  reason  before  listening 
to  his  inclinations.  Although  he  foregoes  in  this  state  many 
advantages  he  drew  from  nature,  he  gains  instead  such  great 
ones,  his  faculties  are  so  exercised  and  developed,  his  ideas 
so  extended,  his  sentiments  so  ennobled,  his  entire  soul  to 
such  a  degree  elevated,  that,  if  the  abuses  of  this  new  condi- 
tion did  not  often  degrade  him  below  that  out  of  which  he 
came,  he  would  be  bound  without  ceasing  to  bless  the  happy 
moment  that  drew  him  thence  forever,  and  which  made  him 
from  being  a  stupid  and  contracted  animal  an  intelligent  being 
and  a  man."     (i.,  8.) 

What  man  loses  by  the  social  contract  is  his  natural  liberty 
and  an  unlimited  right  to  all  that  tempts  him  and  that  he  can 
get  into  his  hands.*  What  he  gains  is  civil  liberty,  and  the 
ownership  of  all  that  he  possesses,  (ibid.)  As  land  would  be 
an  important  part   of  a   man's  goods  at   the  time  of  making 

*  In  the  edition  of  1835  the  words  are  a  tout  ce  quHl  tente,  etc. 
But  qui  le  tente  is  found  in  other  editions. 


OPINIONS    ON   THE   STATE.  1 75 

the  social  pact,  Rousseau  has  to  admit  some  title  to  land  at 
that  time,  and  somewhat  hesitatingly  finds  it  in  occupation, 
(i.,  9.)  When  society  accepts  a  man's  alienation  of  what  was 
his,  far  from  being  despoiled  of  his  goods  he  is  assured  of 
their  legitimate  possession  ;  his  usurpation  is  changed  into  a 
real  right  and  his  holding  of  them  dc  facto  into  the  right  of 
property.  Here  we  might  ask  how,  if  his  right  was  not  truly 
such,  his  title  could  be  cured  by  the  transfer  to  society  and 
the  declaration  of  society  that  it  is  his,  unless  society  had  a 
right  to  it  before  the  social  pact  had  constituted  society. 

It  follows,  according  to  Rousseau,  from  the  principles  laid 
down,  that  sovereignty,  which  is  nothing  but  the  exercise  of 
the  general  will,  cannot  be  alienated,  and  that  the  sovereign 
who  is  a  collective  being  can  be  represented  only  by  himself. 
Power  can  be  transmitted,  but  not  will,  (ii.,  1.)  In  another 
place  (iii.,  15)  he  says  that  as  soon  as  the  public  service 
ceases  to  be  the  principal  business  of  the  citizens,  and  they 
prefer  to  serve  their  purses  rather  than  their  persons,  the  state 
is  on  the  verge  of  ruin.  If  a  battle  must  be  fought,  they 
hire  troops  and  stay  at  home  :  rather  than  go  to  the  place  of 
public  deliberation  they  appoint  deputies  in  their  stead.  Thus 
they  leave  soldiers  to  enslave  their  country  and  representatives 
to  sell  it.  In  a  truly  free  country,  men,  rather  than  get  rid  of 
their  duties  by  the  help  of  others,  would  pay  money  in  order 
to  discharge  the  duties  themselves.  Sovereignty  cannot  be 
represented  for  the  same  reason  that  it  cannot  be  alienated. 
It  consists  in  the  general  will  which  is  incapable  of  represen- 
tation. Deputies  are  not  and  cannot  be  representatives. 
Every  law  which  the  people  in  personal  presence  has  not 
ratified  is  null  ;  it  is  not  a  law.  "  The  English  people  thinks 
itself  free  but  is  much  deceived.  It  is  only  free  during  the 
election  of  members  of  parliament  ;  as  soon  as  they  are 
chosen,  it  is  in  slavery,  it  is  nothing.  By  the  use  which  they 
make  of  their  liberty  in  the  short  moments  of  their  liberty, 
they  well  deserve  to  lose  it."      (iii.,  15.) 

Rousseau  must  conceive  of  a  small  state  where  the  people 
from  the  remotest  districts   can  be  gathered  in  council  at  the 


176  POLITICAL    SCIENCE. 

centre.  In  fact  he  says  (iii.,  1),-  that  the  larger  a  state  grows 
the  more  liberty  diminishes.  By  this  is  meant  that  the  single 
citizen,  in  a  community  of  a  hundred,  has  more  power  than 
in  one  of  a  thousand,  (iii.,  I,  p.  103.)  There  is  thus  an 
antique  cast  in  his  theory,  which  may  be  accounted  for  in 
part  by  his  early  life  in  Geneva.  An  old  city-state  with  its 
unrepresented  democracy,  its  jealousy  of  public  offices,  its 
control  of  the  community  over  the  individual,  its  narrow 
limits  allowing  all  to  gather  together, — such  was  the  ideal  to 
which  his  eye  was  turned. 

Again  it  follows  from  the  nature  of  the  contract  that  sover- 
eignty is  indivisible,  for  how  can  the  general  will  be  subdi- 
vided, or  shared  ?  Whenever  this  seems  to  be  the  case  there 
is  a  deception  ;  the  rights  considered  as  portions  of  the  sov- 
ereignty are  subordinated  to  it,  and  always  imply  supreme 
wills  of  which  these  rights  only  furnish  the  execution. 
"  Grotius  " — here  we  see  the  fanatic — "  a  refugee  in  France, 
dissatisfied  with  his  country  and  desirous  of  making  his  court 
to  Louis  XIII. ,  to  whom  his  book  is  dedicated,  spares  no  efforts 
in  order  to  strip  the  peoples  of  their  rights,  and  to  give  these 
rights  over  to  kings  with  all  the  art  possible."      (ii.,  2.) 

The  general  will  of  the  sovereign  people  is  always  right, 
and  tends  always  towards  the  public  utility,  but  does  not 
always  move  in  the  right  direction.  The  people  cannot  be 
corrupted  but  maybe  deceived,  (ii.,  3.)  "There  is  often 
quite  a  difference  between  the  will  of  all  and  the  general  will, 
which  regards  only  the  common  interests,  while  the  will  of 
all,  being  the  sum  of  particular  wills,  regards  private  interests. 
If  the  citizens  had  no  communication  with  one  another, — 
the  body  being  supposed  to  be  sufficiently  informed, — there 
might  be  a  great  number  of  small  differences  of  opinion,  but 
a  general  will  would  be  the  result.  But  associations  divide  a 
community  ;  the  will  of  the  association  becomes  a  general 
will  to  its  members,  and  a  particular  one  to  that  body  which 
is  really  general.  There  are  thus  as  many  votes  as  there  are 
associations,  not  as  many  as  there  men.  When  one  of  these 
associations  has  more  sway  over  minds  than  all  the  rest,  there 


OPINIONS   ON   THE   STATE.  177 

is  no  longer  a  general  will,  but  a  controlling  particular  one. 
It  is  of  importance  then  that  there  be  no  partial  society  in 
the  state,  but  that  each  citizen  think  for  himself.  Such  was 
the  unique  and  sublime  institution  of  the  great  Lycurgus. 
But  if  there  must  be  partial  societies,  their  number  ought  to 
be  multiplied  in  order  to  prevent  the  inequality  that  may 
thence  arise."  (ibid.).  A  fine  illustration  of  the  absurd  in 
impractical  abstractions. 

The  social  pact  gives  to  the  body  politic  an  absolute  power 
over  all  its  members,  and  it  is  this  power  directed  by  the  gen- 
eral will  to  which  is  attached  the  name  of  sovereignty.  If,  as 
it  is  admitted,  there  is  an  alienation  by  each  one  of  his  power, 
goods,  liberty,  according  to  the  social  pact,  only  that  is  thus 
alienated  the  use  of  which  is  important  for  the  community; 
but  it  must  be  admitted,  also,  that  the  sovereign  alone  is  judge 
of  this  importance.  The  sovereign  can  load  the  subjects  with 
no  chain  that  is  useless  to  the  community,  it  cannot  even 
have  the  wish  to  do  this.  The  general  will  is  always  right, 
because  there  is  no  individual  who  does  not  appropriate  to 
himself  this  word  {chacun)  "  each  one"  who  does  not  think 
of  himself  in  voting  for  all.  This  is  a  proof  that  equality  of 
right  and  the  notion  of  justice  which  it  produces  are  derived 
from  the  preference  which  each  one  gives  to  himself,  and  con- 
sequently from  the  nature  of  man  ;  and  that  the  general  will 
loses  its  rectitude  when  it  tends  toward  some  individual  and 
determinate  object,  (ii.,  4.)  As  the  social  pact  is  general, 
since  otherwise  it  could  not  establish  equality  of  rights  among 
the  citizens  ;  laws  relating  to  particular  persons  seem  to  be  in- 
consistent with  it  (p.  64)  and  every  man  can  dispose  with 
full  power  of  whatever — whether  goods  or  liberty — has  been 
left  to  him  by  its  provisions,  [his  liberty  ?]  So  far  is  it  from 
being  true  that  the  pact  demands  on  the  part  of  individuals 
any  real  renunciation,  that  their  situation,  by  virtue  of  the 
contract,  is  found  to  be  really  preferable  to  what  it  was  before, 
(ibid.,  p.  66.)  (But  this  might  be  true  and  yet  there  might 
be  a  renunciation.  The  pact  makes  his  gains  more  than  his 
losses.  This  is  probably  Rousseau's  meaning.) 
12 


178  POLITICAL   SCIENCE. 

But  it  is  asked  how  individuals  having  no  right  to  dispose 
of  their  own  lives  can  transmit  to  the  sovereign  a  right  which 
does  not  belong  to  them.  To  this  question  Rousseau  replies 
that  every  one  has  the  right  of  risking  his  life  to  preserve  it. 
But  will  it  follow  that  he  has  the  right  of  risking  his  life  be- 
cause another  tells  him  to  do  so,  if  he  verily  believes  that  by 
the  risk  he  cannot  preserve  it  ?  But  he  takes  a  higher  ground. 
"  He  who  wishes  to  preserve  his  life  at  the  expense  of  others 
ought  to  give  it  up  also  for  others  when  occasion  requires. 
Now  the  citizen  is  no  longer  the  judge  of  the  danger  to  which 
the  law  requires  him  to  expose  himself;  and  when  the  prince 
has  told  him  it  is  expedient  for  the  state  that  he  should  die,  he 
ought  to  die,  because  it  is  only  on  this  condition  that  he  has 
lived  in  security  hitherto,  and  his  life  is  no  more  one  of  na- 
ture's blessings,  but  a  conditional  gift  from  the  state."  (ii.,  5.) 
Very  well  !  But  by  what  right  can  the  prince  tell  him  to  die, 
if  he  had  no  right  to  consent  to  put  his  life  at  the  community's 
disposal.  If  others  die  for  him,  what  right  had  they  to  do 
so  ? 

The  penalty  of  death  inflicted  on  criminals  he  explains  on  the 
ground  that  it  is  for  the  purpose  of  not  being  the  victim  of  an 
assassin  that  a  person  consents  to  die,  if  he  should  become 
one.  (ibid.,  p.  68.)  But  this  queer  explanation  does  not  seem 
to  satisfy  him,  for  he  adds  another,  "that  every  malefactor 
by  his  crime  becomes  a  rebel  and  traitor  to  his  country  ;  he 
even  makes  war  on  it,  and  when  taken,  he  dies  rather  as  a 
citizen  than  as  an  enemy."  But  we  do  not,  generally,  kill 
our  enemies  in  war  when  we  capture  them.  War  has  resem- 
blances to  the  violent  acts  of  malefactors,  but  it  has  some 
differences  also. 

Rousseau  thinks  no  one  system  of  government  to  be  abso- 
lutely the  best.  Every  form  is  not  suitable  for  every  country. 
If  there*  were  a  people  of  gods  it  would  govern  itself  demo- 
cratically, but  a  government  so  perfect  does  not  suit  men. 
A  democracy  will  flourish  best  in  a  small  state,  where  the 
people  can  assemble  and  know  each  other,  where  there  is  a 
great  simplicity  of  manners,  much  equality  of  rank  and  for- 


OPINIONS   ON   THE   STATE.  1 79 

tune,  with  little  or  no  luxury.     But  a  democracy  is  more  ex- 
posed to  civil  wars  than  any  other  form,     (iii.,  4.) 

But  how  is  government  in  general  possible  under  the  so- 
cial compact?  "The  difficulty  is  to  understand  how  there 
can  be  an  act  of  government  before  government  exists,  and 
how  the  people,  which  is  either  sovereign  or  subject,  can  be- 
come the  prince  or  magistrate  in  certain  circumstances.  Here 
again  we  discover  one  of  those  astonishing  properties  of  the 
political  body  by  which  it  reconciles  operations  apparently 
contradictory  ;  for  by  a  sudden  conversion  of  the  sovereignty 
into  a  democracy  without  any  sensible  change  and  only  by 
means  of  a  new  relation  of  all  to  all,  the  citizens,  having  be- 
come magistrates,  pass  from  general  to  particular  acts,  and 
from  law  to  its  execution."  This  may  be  compared  with  the 
practice  of  the  English  house  of  commons,  when  it  resolves 
itself  into  a  committee  of  the  whole,  and  thus  passes  out  of 
the  condition  of  a  sovereign  chamber,  which  it  was  just  before. 
"  Such  is  the  advantage  peculiar  to  democratic  government, 
of  being  able  to  be  established  in  fact  by  a  single  act  of  the 
general  will.  After  which  the  general  government  remains 
in  possession  (if  such  be  the  form  adopted),  or  establishes  the 
government  prescribed  by  law,  in  the  name  of  the  sovereign  ; 
and  thus  everything  goes  on  in  its  order.  It  is  not  possible 
to  institute  the  government  in  any  other  manner  which  is 
legitimate,  and  without  renouncing  principles  already  estab- 
lished."    (iii.,  17.) 

The  executive  officer  or  officers  are  mere  agents  of  the 
whole  body.  There  can  be  no  contract  between  a  people  and 
its  chiefs,  since  by  the  nature  of  the  case  the  supreme  author- 
ity can  no  more  modify  than  alienate  its  power.  Limitation 
would  be  destruction,  for  a  general  will  would  cease.  Con- 
tracting parties  must  be  under  the  sole  law  of  nature,  and 
without  any  guaranty  of  their  reciprocal  engagements.  There 
is  but  one  contract  in  the  state,  namely,  that  which  constitutes 
the  society.  No  other  public  contract  can  be  imagined  which 
would  not  be  a  violation  of  the  first,      (iii.,  16.) 

There  is  no  necessity  of  unanimity  in  legislation   under  the 


l80  POLITICAL   SCIENCE. 

social  pact.  The  pact  alone  demands  universal  assent.  If, 
at  the  time  when  it  is  made  there  are  those  who  oppose  it, 
the  pact  itself  is  not  invalidated.  It  comes  into  force,  but 
they  are  not  included.  They  are  strangers  among  the  citi- 
zens. After  the  state  is  founded,  consent  consists  in  residence  ; 
to  inhabit  a  country  is  to  submit  to  its  territory."  (iv.  2.) 
But  would  not  the  state,  on  Rousseau's  principle,  be  in  rela- 
tion to  such  persons  and  their  goods — for  he  conceives  of 
goods  before  the  social  contract — in  a  condition  of  nature, 
with  an  unlimited  right  to  all  that  it  could  lay  its  hands  on  ? 
(i.,  8.) 

The  question  may  be  started,  however,  whether  a  man  can 
be  free,  and  yet  forced  to  conform  to  the  determinations  of 
other  wills.  To  this  Rousseau  answers  that,  when  a  law  is 
proposed  in  an  assembly  of  the  people,  the  question  put  to 
them  "  is  not  precisely  whether  they  approve  of  the  proposi- 
tion or  reject  it,  but  whether  it  is  conformed  to  the  general 
will,  which  is  theirs.  When  therefore  the  opinion  contrary 
to  mine  prevails,  this  proves  nothing  but  that  I  had  made  a 
mistake,  and  that  what  I  thought  to  be  the  general  will  was 
not  such.  If  my  private  opinion  had  prevailed,  I  should  have 
done  some  other  thing  than  I  had  wished  to  do  ;  it  is  then 
that  I  should  not  have  been  free."  (iv.,  2,  p.  174.)  As  if 
men  could  know  the  general  will  until  the  votes  were 
counted,  or  did  not  intend  in  voting  to  prevent  those  who 
voted  otherwise  from  becoming  a  majority. 

The  violation  of  the  pact  is  attended  with  serious  conse- 
quences. In  a  passage  already  cited  it  is  said  that  each  one 
then  re-enters  into  his  former  rights  and  resumes  his  natural 
liberty,  while  he  loses  the  conventional  liberty  for  which  he 
renounced  the  natural.  A  violation  then,  of  this  kind,  must 
be  attended  with  the  most  considerable  evils,  with  the  general 
ovci  throw  of  order  and  law  through  a  country.  Let  a  man, 
for  instance,  get  the  supreme  power  and  destroy  existing  in- 
stitutions. The  social  contract  is  terminated,  and  a  state  of 
nature  follows.  But  in  this  state  of  nature  the  tyrant  has  an 
unlimited  right  to  all  that  tempts  him  and  that  he  can  grasp. 


OPINIONS   ON   THE   STATE.  l8l 

That  which,  while  the  contract  lasted,  was  a  crime,  is  now  a 
source  of  right.*  "  If  the  social  contract  is  not  admitted," 
says  Rousseau,  "  I  recognize  nothing  as  belonging  to  an- 
other, but  that  which  is  useless  to  myself;  I  owe  nothing  to 
him  to  whom  I  have  promised  nothing." 

Sometimes  it  seems  as  if  Rousseau  regarded  his  social  con- 
tract only  as  a  basis  on  which  a  theory  of  political  relations 
could  be  constructed — a  kind  of  political  fiction  ;  sometimes 
he  seems  to  conceive  of  a  state  historically  founded  after  the 
fashion  of  his  contract.  Thus  he  asks  (i.  5  end),  how,  sup- 
posing no  anterior  convention  to  have  taken  place,  there  could 
be  an  obligation  for  the  less  number  to  submit  to  the  choice 
made  by  a  greater  ;  and  how  a  hundred  who  want  a  master 
have  the  right  of  voting  for  ten  who  do  not?  "  The  law  of 
the  plurality  of  suffrages  is  itself  an  establishment  proceeding 
from  a  convention,  and  supposes,  once  at  least,  unanimity." 
We  need  not  say  that  this  is  an  unreality,  and  for  a  large 
country,  acting  in  concert,  an  impossibility.  How  on  an  area 
like  England,  or  like  the  state  of  New  York,  could  a  consti- 
tution be  framed  unless  by  representatives,  whom  Rousseau 
will  not  hear  of;  or  unless  those  who  are  absent  from  the  as- 
sembly must  be  regarded  as  assenting  to  its  unanimous  de- 
cisions. For  such  a  contract  to  be  conceivable  we  must  make 
a  number  of  suppositions,  among  which  are  these  :  that  a 
certain  territory  is  marked  off  from  others  by  definite  bounda- 
ries, which  implies  a  kind  of  state  life  already  ;  that  females 
and  children  up  to  a  certain  age,  are  not  called  on  for  their 
assent,  but  are  either  in  a  state  of  nature  or  a  species  of  sla- 
very ;  that  every  new  comer  into  the  world  within  the  coun- 
try must  give  his  assent  to  the  contract  or  remain  in  a  state  of 
nature  ;  that  men  at  the  stage  of  reflection  implied  in  the 
state  of  nature  could  consent  to  surrender  their  wild  liberty 
for  the  despotical  control  of  society.  In  its  foundations  the 
theory  of  Rousseau  rests  on  will,  not  on  right  ;  the  scheme  is 

*  This  is  urged  against  Rousseau's  theory  by  Ch.  Comte,  Traite  de 
Legislation,  i.,  180-185. 


1 82  POLITICAL   SCIENCE. 

not  to  have  a  wise  or  a  good  government,  but  one  to  which 
every  soul  has  given  its  consent.  Those  so-called  states,  that 
have  never  passed  through  his  democratic  parturition  by- 
contract  into  some  form  or  other  of  state  polity,  are  in  a 
state  of  nature,  for  there  are  but  two  conditions,  that  of  nature 
and  that  into  which  the  social  contract  introduces  a  people. 
Russia,  for  instance,  is  either  in  a  state  of  nature  or  has 
adopted  the  contract.  On  the  first  supposition  there  is  no 
moral  obligation  of  civic  life  to  be  found  there,  prudence  and 
self-interest  being  only  motives  for  quiet  submission.  On  the 
other  supposition  any  constitution  would  be  justified,  and 
the  contract  would  be  an  unmeaning  fiction.  In  the  first 
case  it  would  contain  in  itself  the  seeds  of  revolution  ;  in  the 
other  it  would  be  an  idle  addition  to  old  political  theories. 
In  estimating  the  principles  of  Hobbes,  one  inclines  to  say 
that  any  liberty  is  better  than  his  despotism  ;  when  we  come 
to  Rousseau  we  feel  that  any  despotism  is  better  than  his  lib- 
erty. And  there  is  this  advantage  on  Hobbes'  side,  that  a 
Leviathan,  if  he  is  a  single  man,  or  a  junto,  consisting  of  a 
few,  can  be  got  rid  of  by  a  struggle  of  the  people,  but  Rous- 
seau grinds  us  down  by  a  "  volonte  generate  inalienable,"  to 
which  the  individual  has  renounced  everything,  and  from 
which  there  is  no  appeal.  And  finally,  when  the  contract  is 
violated,  it  carries  everything  back  into  a  state  of  nature 
where  might  and  right  are  identical. 

§   66. 

On  account  of  the  practical  tone  running  through  Burke's 

writings,  and  his  truly  English  disinclination,  if 

not  positive  aversion,  to  political  theory,  there 

may  be  a  reasonable  doubt  where  he  ought  to  find  his  true 

place.     Yet  as  we  have  no  list  of  higher  worthies,  in  which 

we  may  place  him  according  to  his  deserved  honor,  we  give 

him  a  place  here.      He  was  a  man  of  brilliant  genius  and  of 

philosophical  power,  yet  too  much  under  the  influence  of  his 

imagination.       He   stands  at    the   head   of    English  political 

writers   as    one  who,  without  theory  and  holding  with  rigid 


OPINIONS   ON   THE   STATE.  1 83 

conservatism  the  traditions  and  precedents  of  the  nation  to 
which  he  belonged,  gains  the  sympathy  of  men  of  every 
class  of  political  opinion.  No  statesman  of  modern  times 
has  left  such  an  abundance  of  wise  thoughts  in  his  works  ; 
and  he  who  studies  them,  although  he  may  withhold  his 
assent  in  some  important  respects,  will  feel  the  highest  ad- 
miration for  this  highly  gifted  man. 

Burke  was  a  whig  and  gloried  in  the  revolution  of  1688. 
Under  the  influence  of  alarms  roused  in  his  mind  by  the 
French  revolution,  he  leaned  more  to  the  side  of  conservatism, 
left  the  party  with  which  he  had  acted,  and  gave  his  views  to 
the  world  especially  in  his  "  Reflections  on  the  French  Revo- 
lution," and  "  Appeal  from  the  new  to  the  old  Whigs." 
Burke  has  been  charged  with  inconsistency.  In  1770  he 
published  his  "  Thoughts  on  the  Present  Discontents,"  which 
are  seemingly  but  not  really  at  variance  with  his  later  works. 
The  writing  of  that  tract  was  suggested  by  the  cabal  of  the 
"  king's  friends,"  and  the  alleged  plan  to  separate  the  court 
from  the  ministry  and  the  administration.  He  holds  that 
such  a  state  of  things  would  justify  the  refusal  of  parliament 
"  to  support  government  until  the  power  should  be  lodged  in 
the  hands  of  persons  who  were  acceptable  to  the  people,  and 
so  long  as  factions  predominated  in  the  court  in  which  the 
nation  had  no  confidence."  (Works,  Bonn's  ed.,  i.,  333.) 
The  favorites  who  had  most  authority  with  the  king,  whom 
he  calls  an  interior  ministry,  making  a  double  cabinet  (u.  s. , 
339)  wanted  to  establish  the  precedent  "  that  the  favor  of  the 
people  was  not  so  sure  a  road  as  the  favor  of  the  court  even 
to  popular  honor  and  popular  trusts."  (351.)  He  shows  in 
this  tract  a  great  dissatisfaction  with  the  government,  and 
perhaps  a  readiness  to  abridge  the  king's  power  of  choosing 
his  personal  friends  ;  but  few  practical  statesmen  have  been 
more  consistent  with  themselves  than  Burke.  To  this  his 
antagonist  Macintosh  in  the  introduction  to  his  Vindiciae 
Gallicse  bears  attestation. 

Burke  in  his  philosophy  of  government  did  not  differ  from 
other  whisks.     The  doctrine  of  contract  as  the  foundation  of 


1 84  POLITICAL   SCIENCE. 

the  state  he  distinctly  accepts,  as  in  that  noble  passage  of  the 
Reflections  on  the  Revolution  in  France  (vol.  ii.,  368)  where 
he  says,  "  society  is  indeed  a  contract  but  the  state  ought  not 
to  be  considered  as  nothing  better  than  a  partnership  in  a  trade 
of  pepper  and  coffee,  calico  or  tobacco,  or  some  other  such 
low  concern,  to  be  taken  up  for  a  little  temporary  interest 
and  to  be  dissolved  at  the  fancy  of  the  parties."  So  also  the 
whig  doctrine  of  a  contract  between  the  king  and  the  people 
he  admitted  ;  and  regarded  the  revolution  of  1688  as  fully  jus- 
tified by  the  king's  breach  of  his  obligation.  Nothing,  how- 
ever, save  extreme  necessity  could  justify  revolutions,  and  in 
the  "  Appeal  from  the  new  to  the  old  Whigs"  he  shows  at 
large  that  such  had  been  the  doctrine  of  the  party  to  which 
he  belonged.  The  change  consisted  in  no  alteration  of  the 
constitution,  no  violent  divorce  from  the  past,  but  in  getting 
rid  of  the  king  who  had  endeavored  to  overthrow  the  con- 
stitution itself. 

Burke's  most  characteristic  feature  is  a  dread  of  abstract 
principles  of  government,  which  was  carried  to  an  extreme 
when  he  saw  the  miseries  under  which  France  was  groaning 
on  account  of  abstractions.  "  The  foundation  of  govern- 
ment is  laid  in  a  provision  for  our  wants  and  in  conformity  to 
our  duties  ;  it  is  to  purvey  for  the  one  ;  it  is  to  enforce  the 
other.  These  doctrines  do  of  themselves  gravitate  to  a  mid- 
dle point,  or  to  some  point  near  a  middle.  They  suppose 
indeed  a  certain  portion  of  liberty  to  be  essential  to  all  good 
government,  but  they  infer  that  this  liberty  is  to  be  blended 
into  the  government  ;  to  harmonize  with  its  forms  and  rules  ; 
and  to  be  made  subordinate  to  its  end."  "  This  theory,"  he 
says,  "is  drawn  from  the  fact  of  our  government.  The 
whole  scheme  of  our  mixed  constitution  is  to  prevent  any 
one  of  its  principles  from  being  carried  as  far  as,  taken  by  it- 
self and  theoretically,  it  would  go.  Allow  that  to  be  the  true 
policy  of  the  British  system,  then  most  of  the  faults,  with 
which  that  system  stands  charged,  will  appear  to  be  not  im- 
perfections into  which  it  has  inadvertently  fallen,  but  excel- 
lences which   it   has   studiously  sought.     Take   which  of  the 


OPINIONS   ON   THE   STATE.  1 85 

principles  you  please,  you  will  find  its  operation  checked 
and  stopped  at  a  certain  point.  In  the  British  constitution 
there  is  a  perpetual  treaty  and  compromise  going  on,  some- 
times openly,  sometimes  with  less  observation."  (Appeal 
from  the  new  to  the  old  Whigs,  iii.,  109,  110.) 

In  the  same  spirit  he  taught  that  there  was  no  manufactur- 
ing a  constitution  to  order,  that  there  must  be  a  congruity 
between  a  state  and  a  people,  that  a  government  abstractly 
good,  with  the  most  cunningly  contrived  checks  and  balances, 
but  not  suited  to  a  people,  is  a  bad  and  will  prove  an  unstable 
government.  So  also  a  government  or  constitution  has  no 
self-preserving  power.  The  conserving  forces  are  religion, 
that  is,  an  established  church,  aristocracy  and  the  interests  of 
property,  together  with  good  political  habits  and  those  sen- 
timents, such  as  reverence  for  ancestors,  allegiance,  attach- 
ment to  old  institutions,  which  rest  on  historical  recollections. 
"The  very  idea  of  the  fabrication  of  anew  government  is 
enough  to  fill  us  with  horror.  We  wished  at  the  period  of 
the  Revolution,  and  do  now  wish  to  derive  all  we  possess  as 
an  inJicritancc  from  our  fatJiers.  Upon  that  body  and 
stock  of  inheritance  we  have  taken  care  not  to  inoculate  any 
scion  alien  to  the  nature  of  the  original  plant.  All  the  refor- 
mations we  have  hitherto  made,  have  proceeded  upon  the 
principle  of  reverence  to  antiquity  ;  and  I  hope,  nay,  I  am 
persuaded,  that  all  those  which  may  possibly  be  made  here- 
after will  be  carefully  formed  upon  analogical  precedent 
authority  and  example."     (Reflections  on  Fr.  Rev.,  ii.,  305.) 

§   67. 
Since  the  French  revolution,  which   Rousseau's  doctrines 
inn.  of  French    helped  on    more  than  all  other  causes,  except 
the  great  crying  grievances  of  bad  institutions, 
there  has  been  a  reaction  in  the  world  from  theory,  and  espe- 
cially from  the  doctrine  of  the  sovereignty  of  the  people  and 
their  right  to  change  the  constitution,   which   under  proper 
limitations   is  the  only  true  theory  and  will  continue  to  the 
end  of  the  world  to  be  the  practice.     Burke's  practical  politi- 


I  86  POLITICAL   SCIENCE. 

cal  maxims  were,  if  not  suggested,  at  least  enforced  by  that 
event.  To  Le  Maistre  we  have  already  called  attention. 
Von  Haller's  views  are  entitled  to  a  brief  notice.*  He  holds 
that  there  is  no  such  thing  as  state  rights  ;  all  rights  are  pri- 
vate rights.  Thus  the  powers  wielded  by  the  heads  of  German 
principalities  were  private  ;  they  had  an  absolute  right,  which 
could  not  be  taken  away  but  descended  by  the  private  right 
of  inheritance.  You  would  suppose  that  the  people  must  be 
in  a  sad  case.  But  no  !  all  their  rights  are  private  also,  and 
cannot  be  taken  from  them  by  their  rulers.  The  public  powers, 
like  taxation,  public  roads,  and  the  like,  are  derived  from  a 
multitude  of  contracts,  as  if — to  borrow  the  illustration  of 
another — Rousseau's  great  ingot  was  melted  into  small  coins. 
The  people  as  well  as  the  prince,  if  invaded,  have  a  right  to 
resistance  after  the  barons'  fashion  in  the  middle  ages.  As 
for  the  rulers,  their  original  title  was  the  right  of  the  strongest, 
but  actual  possession  brings  right  with  it.  The  object  for 
which  the  theory  was  constructed  was  to  keep  things  as  they 
are.  But  even  this  is  not  attained.  What  is  to  prevent  the 
right  of  the  stronger,  which  existed  one  year,  from  being 
overthrown  the  next  by  one  stronger  still. 

The  restoration  of  the  Bourbons  to  monarchy  in  France, 
with  the  subsequent  transfer  of  the  government  to  Louis 
Phillippe  and  his  line,  was  attended  with  the  formation  or 
modification  of  certain  political  theories  by  some  of  the  first 
men  of  France,  such  as  R.  Collard  and  Guizot.  The  doc- 
trines of  this  school  are  chiefly  practical,  so  far  as  they  are 
distinctive.  They  may  be  compared  with  Burke's  views,  as 
indicating  an  intention  to  modify  theory  by  historical  consid- 
erations. With  their  practical  side  we  have  now  no  direct 
concern.  The  legitimacy  of  a  government  on  their  theory 
consisted  in  its  being  the  reign  of  reason,  justice  and  right. 
But  as  most  governments,  if  you  look  at  their  origin,  are 
founded  in  might  not  in  right,  it  is  not  the  origin  of  actual 
governments  which  gives  them  a  just  title  to  exist  but  the 

*  See  F.  V.  Raumer,  uber  die  geschichtl.  Entwickelung,  etc.,  pp. 
108-197. 


OPINIONS   ON   THE   STATE.  1 87 

fact  that  they  arc  now  just  governments.  To  this  is  to  be 
added  the  fact  that  they  have  endured  for  a  considerable  time. 
Just  as  legal  titles  after  a  certain  length  of  undisturbed  pos- 
session are  regarded  as  valid,  so  is  it  in  the  case  of  public 
right.  In  this  way  they  reached  a  historical  ground  for  an 
existing  government,  but  they  fell  into  a  difficulty  on  their 
own  theory,  when  the  July  revolution  of  1830  brought  Louis. 
Phillippe  and  his  line  to  the  throne.  What  was  his  title, 
according  to  the  very  men  of  whom  some  entered  into  office 
under  him?  Nothing  more  than  a  sort  of  quasi  legitimacy, 
weak  at  first,  but  increasing  in  strength  every  year.  He 
was  king  not  because,  being  a  Bourbon,  he  had  a  right  to  the 
throne,  for  there  were  others  with  a  better  title,  if  succession 
by  inheritance  gave  a  title,  but  because  it  was  expedient  for 
the  public  peace  that  a  member  of  that  family  should  be 
called  to  the  throne  in  preference  to  all  others.  Or  in  other 
words,  if  the  revolution  was  to  take  the  course  which  would 
satisfy  the  greatest  number  of  Frenchmen  and  make  the 
least  break  between  the  present  and  the  past,  what  they  did 
might  be  justified,  at  least  as  regards  giving  the  revolution 
this  particular  course.  But  the  question  was  one  at  this  point 
with  which  theory  had  little  to  do.  If  they  could  have  got 
upon  the  English  ground  of  a  contract  between  king  and 
people,  the  breach  of  which  would  justify  both  the  deposition 
of  the  king  by  an  act  of  the  nation  and  the  readjustment  of 
the  supreme  authority,  that  would  have  been  apprehensible. 
Such  a  theory  would  have  based  the  monarchy  really  upon 
the  consent  of  the  nation,  while  it  rendered  the  attempts  of 
the  disaffected  to  overthrow  the  state  very  difficult;  but  so 
far  as  I  am  aware  they  did  not  incline  to  take  that  position. 
But  there  was  truth  in  their  doctrine.  Length  of  time  im- 
plies consent  of  the  nation  and  also  intertwines  constitution 
and  laws  in  various  ways  with  the  habits  of  thinking  and  act- 
ing, to  such  a  degree  as  to  make  a  change  without  the  gravest 
cause  hazardous,  and  to  render  settled  order  afterwards  ex- 
tremely difficult.  But  it  ought  to  be  remembered  that  time 
is  fruitful  of  great  though  often  unperceived  changes  in  ideas, 


1 88  POLITICAL   SCIENCE. 

and  in  the  relation  of  classes.  To  take  account  of  such  ideas 
and  changes  is  what  leaders  of  nations  have  never  done,  per- 
haps never  will  do.  And  so  when  time  knocks  at  the  door 
with  a  long  account  in  his  hand,  he  finds  those  who  should 
have  been  ready  for  him  perplexed  and  helpless, 


CHAPTER  II. 

THEORIES    TOUCHING  THE   STATE  EXAMINED. 

§68. 
The  speculations  of  which  we  have   given  an  outline  are 
Criticism  of  some   chiefly  concerned  with  the  right  of  the  state  to 

of    the    theories    re-  .  .      .  . 

spectins  the  state,  exist,  with  the  origin  and  extent  of  its  powers, 
with  its  relation  to  the  individuals  within  its  borders,  and  its 
rights  to  jurisdiction  within  a  territory  which  somehow  or 
other  came  to  belong  to  a  certain  body  politic,  rather  than  to 
any  other.  No  one  has  doubted  that  state  organizations  are 
a  necessary  part  of  the  system  which  provides  for  the  order, 
progress,  and  elevation  of  mankind  :  yet  it  is  not  enough  to 
know  that  states,  fulfilling  what  seems  to  human  reason  to  be 
their  end,  exist,  but  the  question  is  still  asked  by  what  right 
came  they  to  start  into  being,  and  who  gave  them  their 
powers?  No  one,  again,  can  well  doubt  that  the  family  was 
prior,  in  time,  to  the  clan  or  tribe — -whatever  the  extent  may 
have  been  of  the  original  family — and  the  clan  or  tribe  to  the 
state  ;  but  the  matter  of  fact  revealed  by  history  has  not  been 
the  point  of  chief  interest :  the  speculations  run  back  to  the 
right  of  the  state  to  exist  and  to  hold  power, — to  a  question  of 
ethics  and  of  politics,  and  not  of  history.  Nor,  further,  can  we 
doubt  that  a  multitude  of  historical  causes  acting,  it  may  be, 
through  ages,  have  determined  the  extent  of  territory  where 
each  state  should  do  its  appropriate  work  ;  but  the  very  im- 
portant inquiry,  How  came  a  state  to  be  where  and  as  large 
or  small  as  it  is,  has  been  shoved  into  the  background  for  the 
most  part,  in  order  to  give  room  to  the  question,  "  What  was 
the  process  by  which  the  people  scattered  over  a  certain  part 
of  the  earth's  surface  came  together  at  some  remote  period  to 
organize  a  state  within  certain  territorial  limits  ?  " 

These  speculations  may,  however,  take  the  shape  of  juristic 


IQO  POLITICAL   SCIENCE. 

fictions;  their  aim  being  not  to  derive  from  any  fact  but  from 
something  in  human  nature  an  explanation  for  the  state's  exis- 
tence. But  if  fictions  in  law  are  dangerous  as  introducing 
false  principles,  so  fictions  of  this  sort  may  end  in  giving  a 
false  view  of  the  state  and  its  relations  to  individuals.  And 
it  is  worthy  of  notice  that  such  suppositions  seem  to  impose 
on  those  who  make  them,  as  being  true  accounts  of  expedi- 
ents adopted  by  the  human  race  in  its  infancy. 

We  proceed  to  notice  some  of  the  errors  which  have  lain  at 
the  foundation  of  theories  starting  from  the  in- 

Errors  of  method.       .....  -  . 

dividual  man,  as  from  the  unit  in  the  state  s  ex- 
istence, i.  The  first  is  to  select  some  particular  part  or  feel- 
ing of  human  nature,  as  the  motive  for  isolated  beings  in 
coming  into  an  organized  society.  Thus  Hobbes,  as  we  have 
seen,  conceives  of  a  state  of  things  where  all  had  desires  for 
all  things,  and  no  one  a  recognized  right  to  anything.  Hence 
to  prevent  universal  war,  after  experience  of  evil,  they  created 
a  power  which  defined  right  and  maintained  it.  Now,  if  this 
were  a  mere  hypothesis  to  show  how  society  might  be  ex- 
plained, it  would  take  a  truth  of  human  nature  into  view,  but 
not  the  whole  truth.  Men  had  something  else  in  them  be- 
sides desires  and  fear.  The  social  principle  is  stronger  in 
man  than  in  most  animals,  and  the  social  ties  infinitely  more 
permanent.  This,  then,  ought  to  be  at  least  as  strong  a  mo- 
tive for  man's  finding  his  well-being  in  society,  as  fear  of  one's 
fellows.  Moreover,  if  there  were  no  social  nature  to  be  grat- 
ified by  various  forms  of  unions  among  men,  it  is  difficult  to 
see  how  a  society  formed  on  the  motive  of  fear  and  self  pro- 
tection could  be  stable  ;  while  our  present  nature  with  its 
sympathies  and  social  instincts  would  grope  into  the  condition 
of  permanent  societies,  if  only  the  sense  of  justice  with  the 
recognition  of  rights  and  obligations  were  present  to  keep 
such  communities  in  order  and  peace. 

2.  Again,  the  method  of  contract  or  compact  by  which  so- 

The  theory  of  con-  ciety  is  conceived  of  being  organized  will  not 

tract-  stand  the  test  of  examination.     The  contract,  as 

all  have  equal  rights,  must  first   provide  for  differences   of 


THEORIES   TOUCHING   THE   STATE   EXAMINED.  igi 

opinion,  and  then  proceed  to  secure  the  engagement,  of  each 
towards  all  or  the  whole,  to  abide  by  the  decision  of  the  ma- 
jority, whatever  they  may  ordain.  Dissentients  must  be 
presumed  to  give  their  consent  if  they  do  not  leave  the  terri- 
tory, or  they  are  outlaws  in  it.  The  rights  acquired  by  the 
state  are  the  renounced  rights  of  the  individuals,  for  no  one 
can  give  what  is  not  his  own.     Thus  state  power  arises. 

On  the  social  compact,  which  I  have  given  in  a  somewhat 
more  general  form  than  that  of  Rousseau,  it  may  be  observed 
that  it  is  untrue  in  fact  and  breaks  down  as  a  theory.  In  re- 
gard to  its  unreality  nothing  needs  to  be  added  to  what  has 
been  said  already.  In  regard  to  its  theoretical  value  we  re- 
mark, first,  that  no  contract,  as  we  have  seen,  can  convey 
what  is  not  the  property  of  one  of  the  parties  to  the  other, 
nor  render  that  right  which  was  wrong  before.  Unless  their 
nature  makes  men  to  find  their  highest  good  and  best  life  in 
the  state,  no  contract  could  justify  their  entering  into  a  politi- 
cal life.  If  it  be  said  that  men  would  not  be  likely  to  think 
of  the  reasons  for  instituting  political  life  after  the  fashion  of 
philosophers,  but  would  fall  into  such  a  life  almost  without 
thought,  because  they  were  TroXorcKa  £c5a,  to  this  I  agree  as 
very  true  ;  but  it  shows  that  nature  and  not  legal  forms  led 
the  way  into  such  a  condition  of  mankind, — it  shows,  in  fact, 
the  uselessness  of  the  contract  hypothesis. 

Again,  contract  does  not  explain  the  obligation  of  subse- 
quent generations  to  abide  by  the  contract.  A  successor  by 
testament  can  be  bound  to  fulfil  the  conditions  if  he  receive 
the  bequest ;  but  the  binding  force  of  a  social  covenant  spends 
itself  when  the  contracting  parties  disappear  from  the  earth. 
They  are  partners,  and  the  partnership  expires  unless  new 
members  are  admitted  by  their  own  free  consent.  Mr.  Jeffer- 
son, who  embraced  this  contract  philosophy,  felt  this  objec- 
tion so  strongly  as  to  think  that,  after  nineteen  years,  when 
the  majority  of  the  first  framers  of  a  constitution  would  no 
longer  be  living,  constitutions  ought  regularly  to  be  submitted 
to  the  people.  On  this  an  American  writer  remarks  that  he 
made  the  life  of  a  state  shorter  than  that  of  a  horse.     But  he 


192  POLITICAL   SCIENCE. 

did  this  logically.  His  error  lay  in  starting  from  the  basis  of 
express  contract,  and  in  resting  the  obligations  of  citizens 
towards  the  state  on  a  formal  transaction,  rather  than  on  the 
nature  of  man  and  the  necessity  of  the  state.  The  man  born 
in  the  state  and  continuing  there  must  fulfil  the  duties  of  a 
citizen  or  suffer  the  penalty.  He  has  no  more  choice,  if  he 
stays  within  his  native  country,  than  the  child  has,  until  he 
"  leaves  his  father  and  mother,"  in  regard  to  submitting  to 
the  law  of  the  family.  This  obligation  and  not  contract  de- 
mands the  continuance  of  loyalty  to  the  state,  while  a  man  is 
a  member  of  it.  The  beginning  of  the  obligation  lay  in  birth 
and  not  in  contract. 

Still  further,  the  theory  of  contract,  as  the  origin  of  the 
state,  is  of  no  use  in  explaining  the  actual  obligations  of  the 
citizen  or  subject  in  many  countries,  especially  in  despotic 
ones.  Here,  as  nothing  like  a  participation  of  the  people  in 
state  power  ;  or  their  free  surrender  of  power  to  the  despot ; 
will  be  claimed  to  exist,  either  there  is  no  contract  and  no 
obligation  to  obey  state  law  ;  or  there  is  a  tacit  consent,  and  so 
any  form  of  government  may  be  justified.  Contract  brings  in 
a  Leviathan  as  easily  as  it  sets  up  the  power  of  a  people,  and 
the  existing  government,  whatever  it  be,  contains  the  terms. 
Another  disadvantage  of  the  theory  of  contract  is  that  it 
contract  fails  to  fails  to  Put  on  the  right  ground  the  powers  or 

explain  state-rights.     rjghts  of   the    state>         jt     Jg    sajd  ^    ^^   when 

they  enter  into  a  condition  of  organized  society,  surrender  their 
rights  or  some  of  them,  and  that  state-rights  consist  of  the 
surrendered  rights  of  individuals.  On  this  I  remark,  first, 
that  no  classes  of  rights  are  surrendered  which  properly  belong 
to  individuals,  and  secondly,  that  states  have  rights  which 
cannot  be  fairly  derived  from  this  source. 

(i.)  No  rights  are  surrendered, — I  mean  no  classes  of 
rights,  which  properly  belongs  to  the  individual  man.  It  is 
true  that  the  union  of  men  even  in  the  most  free  artificial 
associations  puts  a  restraint  on  the  power  and  free  exercise  of 
will  of  the  individual  members.  And  what  is  thus  submitted 
to,  when  a  person  joins  the  union,  is  submitted  to  on  the  very 


THEORIES   TOUCHING   THE   STATE    EXAMINED.  193 

condition  of  living  in  and  under  the  protection  of  organized 
society.  But  it  is  equally  true  that  no  classes  of  rights  are 
renounced  under  the  state,  if  it  be  a  just  state.  If  it  were 
so,  it  would  imply  that  it  fails  to  fulfil  the  end  for  which  its 
existence  can  be  rationally  justified.  Society  would  be  a 
refuge  from  complete  shipwreck  which  is  reached  by  throw- 
ing overboard  a  part  of  our  valuable  frieght,  and  not  an  in- 
stitution intended  for  the  protection  of  all  a  man's  liberty  and 
power,  for  gaining  all  the  ends  for  which  reason  pronounces 
that  he  exists.  If  it  be  said  that  in  a  state  of  nature  he  would 
be  his  own  master  so  far  as  to  decide  for  himself  in  many 
cases  what  law  in  society  decides  over  his  will,  this  would 
doubtless  be  true  ;  the  right  of  self-help,  which  a  man  attacked 
by  a  robber  has,  would  then  need  to  be  put  forth  more  fre- 
quently than  it  is  under  a  regular  government.  If  it  be  said 
again  that  he  could  do  many  things  with  impunity  for  which 
state  law  now  punishes  him,  this  also  is  true.  But  the  ques- 
tion is  not  what  his  power  is,  but  what  his  jural  powers,  his 
rights  are,  which,  but  for  the  state,  might  be  limited  by  vio- 
lence continually.  Thus  he  could  do  many  things  under  the 
reign  of  law  which  he  could  not  do  or  would  not  dare  to  do  in 
a  state  of  lawlessness  ;  and  thus  his  power  is  vastly  increased 
within  an  organized  community,  above  all  by  the  ease  and 
safety  of  co-operating  with  other  men.  Or,  again  ;  will  it  be 
said  that  my  liberty  is  actually  and  jurally  restricted  by  state 
law,  owing  to  the  coexistence  of  others,  my  equals,  under  the 
same  law;  this  again  is  true,  but  it  is  equally  true  that  my 
liberty  would  be  far  more  restricted  in  the  so-called  state  of 
nature — unless  I  were  alone  away  from  mankind  ;  and  that 
the  same  obligations  for  respecting  the  rights  of  others  would 
then  be  real,  although  they  might  not  be  understood. 

/;/  the  second  place,  rights  in  artificial  societies,  or  such  as 
are  formed  by  men  for  special  purposes  not  directly  pointed 
out  by  nature,  are  not  derived  by  surrender  of  personal 
rights.  Why  then  should  those  of  the  state  be  ?  Associa- 
tions have  the  power  under  state  law  of  holding  property  and 
of  doing  various  things,  as  a  community,  which  each  of  the 
13 


194  POLITICAL   SCIENCE. 

members  could  do  for  himself,  besides  others  which  he  could 
not  do.      But    no    man    necessarily  surrenders    his    right    of 
property  when  he  associates  with  others  in  holding  property, 
nor  his  right  of  publishing  a  newspaper  alone  by  owning  stock 
in  a  newspaper.      He  might  enter  into  sundry  associations, 
if  there  were  no   state,  without   renouncing  the  free  exercise 
of  those  very  rights  which  he  exercises  in  conjunction  with 
others.      And  yet  as  far  as  certain  actions  arc  concerned  he 
can  no  longer  be  separate  from  a  part  of  his  fellow-men.      It 
is  as    with    states,  which,  when    they  make    conventions    or 
treaties,  can  indeed  morally  make  no   new  ones  inconsistent 
with  those  which  still  continue  in  force,  but  have  the  right 
of  treaty-making  in  other  respects  as  completely  as  before. 
And  indeed,  not  only  are  no  rights  surrendered  in  a  state  of 
society  which   properly  belong  to  man,  but  only  in  that  state 
do    certain   rights    begin    to    be    realities    or    even    possible. 
Without   the  state  the  rights  of  children    as  against  parents 
would  be  absolutely    unprotected.     Without  the    state    the 
right    of    association    would    be    of    no  value,    unless     one 
might  conceive  of  it  as  being  instituted  for   self-protection, 
thus  serving  as  a  rocking-cradle    for  an   infant  state.      It  is 
indeed  true  that  no  association   into  which  men   can  enter, 
natural  like  the  family  and  state,  or  artificial  like  the  various 
corporations,  can  exist  without  imposing  some  obligation  on 
each  of  its  members.      In  this  sense  even  the  family  relation, 
which  is  a  necessary  one,  may  be  said  to  be  an  abridgement 
of  that  conceivable  liberty  which  men  would  have,  if  they  had 
no  parents  and  grew  out    of  the   ground.      But  it  is  equally 
true  that  the  state  has  it  for  one  of  its    essential  objects  to 
secure— not   such    conceivable    liberty,  but    that    which  be- 
longs to  man  as  measured  by  his  existing  nature,  capacity, 
and  destiny.     Everything  then  turns  on  the  sense  of  natural 
rights.     If  our  definition  of  these  is  the  correct  one,  the  so- 
called  state  of  nature  prevents  their  full  exercise,  and  man  is 
really  in  a  state  of  nature,  only  as  he  is  in  a  state  of  society, — . 
only  then  can  he  exercise  fully  the  powers  of  action  to  which 
his  nature  points  him. 


THEORIES   TOUCHING   THE   STATE   EXAMINED.  195 

In  the  third  place,  states  have  rights  which  cannot  be  de- 
duced from  rights  surrendered  by  individuals.  It  does  not 
follow,  because  A.  and  B.  make  a  contract,  that  their  special 
rights  and  obligations  continue  precisely  the  same  as  they 
would  be,  if  the  two  remained  entirely  disconnected  ;  or 
that  they  may  not  have  new  ones.  Take  the  case  of  a  couple 
uniting  in  marriage.  They  live  together  and  have  children. 
In  this  condition  new  relations,  new  rights  and  obligations, 
most  natural,  begin  to  exist  in  consequence  of  their  connec- 
tion. Society  is  not  the  sum  of  its  members  but  is  some- 
thing more,  and  is  so  for  all  time.  Hence  it  is  not  strange 
that  it  can  do  what  they,  considered  as  individually  apart  from 
society,  could  not  do,  or  could  not  rightfully  do.  Thus 
society  in  the  state  form  has  a  right  to  hold  wild  land,  but  it 
cannot  be  made  to  appear  that  an  individual  in  a  state  of 
nature  could  own  more  than  he  cultivated.*  Society  in  the 
state-form  has  a  right  over  the  lives  of  individuals,  so  far  as, 
for  instance,  to  punish  wilful  murder  capitally.  But  the  mur- 
dered man  certainly  did  not  give  up  his  right  to  punish  his 
murderer.  He  would  have  killed  him  if  he  could.  Nor  does 
it  appear  that  men  in  general  possess,  or  can  give  up,  a  right 
over  their  own  lives.  The  right  of  punishment  does  not  rest 
on  such  a  flimsy  foundation.  The  trouble  that  this  case  gives 
to  Rousseau  is  instructive.  Again  the  great  right  of  adminis- 
tering justice  is  not  drawn  from  the  judicial  prerogative  of 
each  wild  son  of  nature,  for  it  is  clear  that  no  man  can  be  a 
judge  in  his  own  case.  Two  must  agree  if  even  an  arbitrator 
is  appointed.  Society,  in  short,  has  more  wisdom  and  might 
than  the  sum  of  its  members,  and  much  more  than  contend- 
ing claimants  in  a  given  case.  Its  wisdom  and  might  qualify 
it  for  judgment,  and  it  brings  these  qualities  to  bear  on  all. 
The  right  comes  not  from  renounced  pozver  but  from  the 
state  s  being,  in  the  natural  order  of  things,  God's  method  of 
helping  men  towards  a  perfect  life. 

*  Here  it  may  be  noticed  that  the  contract  theory  requires  that 
men  come  into  the  social  compact  with  their  lands  and  all  other 
property.  The  fair  conclusion  for  the  followers  of  Rousseau  is 
against  community  of  goods  as  an  original  institution. 


196  POLITICAL   SCIENXE. 


§69. 

Another  way  of  accounting  for  the  existence  of  the  state 
Theory  of  the  and  of  civil  order  is  to  refer  it  to  the  ordinance 
state's  divine  origin.  0f  Q0d.  The  state  and  the  magistrate  are  of 
divine  appointment.  This  in  practice  has  more  or  less  been 
used  to  defend  the  right  of  kings,  and  to  justify  hereditary 
right,  especially  if  it  has  received  some  confirmation  from  the 
ministers  of  religion.  In  this  there  is  truth  mixed  with  false- 
hood ;  but  the  truth  fails  to  account  for  that  for  which  it  has 
been  used  as  a  support.  If  every  king  were  a  David,  be- 
lieved to  be  set  up  by  an  express  promise  as  the  head  of  a 
hereditary  line,  that  would  be  to  the  purpose  ;  although  the 
monarchy  among  the  Jews  at  its  introduction  was  rather  en- 
dured than  welcomed.  But  even  by  such  a  monarchy  as  that 
of  the  Jews  in  southern  Palestine  we  could  still  deny  that 
anything  general  and  fundamental  was  taught  us.  David  did 
not  create  the  state,  nor  did  his  predecessor,  but  its  founda- 
tions were  laid  long  before.  The  will  of  God  is  revealed  in 
history  and  the  nature  of  man,  which  provide  for  the  state, 
but  do  not  provide  for  any  particular  form  of  state.  The 
state  is  thus  of  God,  as  all  magistrates  are.  The  powers  that 
be  are  ordained  of  God  so  far  forth  as  some  powers  must 
exist ;  and  all  are  equally  ordained  from  the  highest  to  the 
lowest.  A  state  is  of  God,  but  not  a  bad,  unjust,  unwise  state, 
as  a  family  is,  but  not  a  bad  corrupt  family.  God  is  in  the 
world  working  his  counsels,  but  not  founding  a  particular 
state,  in  such  a  sense  that  the  people  may  not  have  con- 
tributed to  or  altered  or  destroyed  their  constitution  ;  nor 
bringing  an  ill-mated  pair  into  the  marriage  union  without 
unwise  choice  of  their  own.  The  fact  that  the  state  is  of  God, 
as  a  general  institution  is  not  a  bar  to  the  inquiry  how  a  state 
has  a  right  to  exist,  nor  to  the  interference  of  the  people,  when 
the  magistrates  are  corrupt  and  traitors,  any  more  than  the 
fact  that  marriage  is  of  God  is  a  bar  to  the  separation  of  a  mar- 
ried pair,  when  one  of  the  two  is  faithless  to  their  covenant. 


THEORIES   TOUCHING   THE   STATE   EXAMINED.  1 97 

iN"or,  if  there  has  been  in  the  world  a  theocratic  state  strictly 
so  called,  that  is,  one  in  which  God  was  the  lawgiver  and 
founder,  and  in  a  certain  sense  the  king,  would  that  fact  prove 
that  all  states  must  have  the  same  origin  ascribed  to  them. 
For  first,  the  theocracy  might  be  instituted  for  a  special  pur- 
pose never  to  recur  again,  and  then  it  might  be  not  so  much 
a  polity,  as  a  collection  of  precepts  ceremonial  and  religious, 
together  with  an  immediate  divine  presence  suited  to  various 
kinds  of  polities. 

And,  in  the  same  way,  we  may  say  that  if  anything  like  a 
Contract,  if  it  ex-   social  contract  has  appeared  in   history,  when 

isted.  only  one  step  ,  r 

out  of  many.  men    came  together  to   form    new  instruments 

of  government,  the  contract  was  only  one  form  out  of 
many,  which  have  preceded  some  established  constitu- 
tion of  things  in  the  political  sphere.  Society  never  began 
by  a  contract  between  men  or  even  families  entirely  inde- 
pendent, and  separate.  But  in  the  later  stages  of  society, 
the  political  action  of  the  people  may  have  taken  a  shape 
resembling  contract,  which,  however,  presupposed  some  ex- 
isting organization  and  some  political  habits.  Such  trans- 
actions would  be  contracts  of  a  people  with  a  ruler,  accept- 
ance of  the  fact  of  conquest,  union  of  confederates,  colonies 
left  to  themselves  by  the  mother  country  to  build  their  own 
frame  of  government.  In  all  such  cases  men  were  already 
under  law.  The  preliminaries  relating  to  what  was  renounced 
among  the  rights  of  a  state  of  nature  and  what  was  retained 
were  not  so  much  as  thought  of. 

It  is  further  to  be  observed  that  contract  is  not  necessary  to 
make  a  government  binding  on  the  conscience,  nor  can  the 
want  of  it  justify  revolution,  as  a  matter  of  course.  Dismiss- 
ing the  extended  consideration  of  these  topics  until  we  speak 
professedly  on  the  subject  of  revolutions,  we  add  here  two 
remarks.  One  is  that  the  assent  of  the  reason  and  conscience 
is  necessary  before  any  government  can  be  said  to  have  the 
highest  right  to  exist,  and  the  other  that  the  right  of  oppos- 
ing an  existing  polity  and  seeking  to  overthrow  it  is  not  jus- 
tified simply  by  showing  that  it  contains  many  bad  features, 


198  POLITICAL    SCIENCE. 

but  other  practical  considerations   also  must  be   taken   into 
account. 

§70. 
How  then  does  the  state  arise  ?     If  the  question  meant  how 
The  state's  real  *n  fac*  can  organized  society  be  accounted  for, 
orisin-  the  answer  is  that  the  family  supplies  the  foun- 

dation, that  the  wants  of  men,  their  needs  of  one  another, 
their  social  nature,  even  their  fears,  keep  them 

The  historical.  ,  1,1.  •     ,  r  1  •     • 

together,  and  that  any  society  of  men  living  to- 
gether will  organize  itself  by  accepting  principles  of  justice, 
rules  of  convenient  intercourse,  and  methods  of  self-protection. 
These  will  appear  in  the  form  of  custom  and  usage.  The  set- 
tlement of  disputes  between  man  and  man,  and  protection  of 
the  community  against  enemies,  will  give  rise  to  arbitrators 
or  judges  and  to  military  leaders,  both  which  offices  might  be 
committed  in  early  society  to  one  and  the  same  person. 

If,  however,  the  question  refers  to  the  rational  grounds  on 

which  we  can  justify  the  existence  of  an  organ- 

The  rational.         ...  ,  r  ,    .  , 

ized  society,  the  answer  is  found  in  the  nature 
and  destination  of  men,  in  their  being  so  made  as  to  seek  so- 
ciety, for  which  they  are  prepared  by  the  family  state,  and  in 
the  impossibility  that  society  should  exist,  be  permanent,  and 
prosper,  without  law  and  organization.  The  individual  could 
make  nothing  of  himself  or  of  his  rights  except  in  society  ; 
society  unorganized  could  make  no  progress,  could  have  no 
security,  no  recognized  rights,  no  order,  no  settled  industry, 
no  motive  for  forethought,  no  hope  for  the  future.  The  need 
of  such  an  institution  as  the  state,  the  physical  provision  fol- 
ks existence,  the  fact  that  it  has  appeared  everywhere  in  the 
world  unless  in  a  few  most  degraded  tribes,  show  that  it  is 
in  a  manner  necessary,  and  if  necessary,  natural,  and  if  natu- 
ral, from  God.  It  is  as  truly  natural  as  rights  are,  and  as 
society  is,  and  is  the  bond  of  both.  It  is  the  means  for  all 
the  highest  ends  of  man  and  of  society. 


CHAPTER  III. 

LAND,    SOVEREIGNTY,    PEOPLE. 

§71. 
THAT  a  state  may  accomplish  its  ends  it  must  have  ade- 
Powersor  rights  of  ^uatG  powers  or  rights  of  action.     Its  powers 
the  state.  may  be  called  rights  like  those  of  the  individual, 

and  these  rights  imply  corresponding  obligations  of  others 
whether  these  others  are  within  the  state  or  are  outside  of  it. 
Relations  to  other  ^  tne  state-making  instinct  is  common  to  man- 
*tates'  kind,  there  will  be  a  network  of  states  over  the 

world,  which  will  have  some  of  the  same  relations,  many  of 
the  same  obligations, — each  to  all  the  others, — that  exist  be- 
tween individual  men.  But  as  individual  men  may  have  no 
intercourse,  so  it  may  be  with  states.  And  there  is  no  obli- 
gation of  states  to  hold  intercourse,  which  is  of  such  strictness 
that  to  live  within  themselves  in  entire  isolation  would  be  a 
ground  for  hostile  proceedings.  Yet  mutual  wants  will,  in 
the  end,  cause  a  society  of  nations,  and  usage  or  express 
contract  will  define  its  conditions.  A  universal  society  and 
the  spread  of  all  truth  and  improvement  thus  become  possi- 
ble. For  this,  as  the  parties  are  equal  and  under  no  common 
jurisdiction,  rules  embodying  the  sense  of  what  is  due  be- 
tween two  or  more  nations,  or  conceding  mutual  privileges, 
will  prepare  the  way,  and  thus  we  reach  the  possibility  of  a 
universal  law  of  nations.  But  this  law,  which  would  define 
the  rights  of  all  nations,  and  what  they  owe  to  one  another, 
although  it  is  properly  a  part  of  the  theory  of  the  state,  will 
be  passed  by  in  the  present  work,  both  because  we  con- 
fine ourselves  to  the  nature  and  constitution  of  the  single 
state,  and  because  international  law  is  to  a  great  extent  posi- 


200  POLITICAL   SCIENCE. 

tive,  and  the  result  of  special  compacts,  emanating  indeed 
from  the  justice  and  humanity  of  nations,  but  not  always  de- 
ducible  from  abstract  principles. 

Vastly   more  important  are  the  relations  of  a  state  to  its 
^    ,  citizens  or  subjects,  than  those  which  it  sustains 

To  the  citizens  or  •>  ' 

subjects.  towards  foreign  powers.      Besides  these  it  has  a 

close  relation  to  the  territory  itself,  and  to  those  who  are  per- 
mitted to  live  within  the  borders  of  the  state  who  are  not  citi- 
zens or  subjects  but  sojourners  or  resident  foreigners.  These 
latter  classes  have  a  double  connection  with  states,  one  with 
the  place  of  their  nativity  (which  has  been  regarded  exten- 
sively, until  quite  modern  times,  as  almost  inalienable),  and 
another  with  the  place  of  their  residence,  where  they  are  sub- 
ject to  laws,  but  are  generally  for  a  time,  if  not  always,  with- 
out political  rights. 

The  relation  of  a  state  to  its  territory  is  not  dominium,  or 
ownership,  but  jurisdiction  and  a  certain  control 

To  die  territory.  ,  .  .  ..... 

for  objects  of  public  or  common  good,  which  in 
some  cases  supersedes  the  control  exercised  by  the  owner. 
Yet  always  just  states  of  modern  times,  since  the  conception 
of  private  ownership  has  become  universally  recognized,  by 
making  a  compensation  to  the  owner  for  the  use  of  his  lands 
or  his  movables,  acknowledge  that  he  is  not  a  tenant  at  will, 
but  something  more.  We  have  already  (§  26)  sought  to  show 
that  private  ownership  of  land  has  its  limits  drawn  by  nature, 
and  that  such  a  claim  and  power  of  control  give  way  before 
another  private  right,  that  of  passing  from  place  to  place. 
The  doctrine  that  there  is  a  state  right  of  dominion  or  of  ulti- 
mate property  over  all  land  within  its  territory  is  based  only 
on  cases  which  grow  out  of  the  necessity  of  locomotion  and 
of  public  defence  and  extreme  need. 

Yet  the  opposite  doctrine  that  the  state  or  prince  was  the 
ultimate  proprietor  of  all  lands  has  had  a  wide  influence.  In 
Rome,  at  first,  property  was  conceived  of  as  belonging  to  the 
state,  and  this  conception  was  confirmed  by  the  fact  that  all 
conquered  territory  was  actually  of  this  description.  Private 
persons  possessed  it,  held  it  by  use,  but  did  not  own  it.  (Comp. 


LAND,    SOVEREIGNTY,    PEOPLE.  201 

Puchta,  inst.  i.,  §40.)  Under  the  emperors  it  came  to  be 
the  jural  theory  that  the  emperor  stood  in  the  relation  of  pro- 
prietor towards  the  lands  in  the  imperial  provinces  and  in 
^Egypt.  In  fact  after  the  changes  in  the  constitution  under 
Diocletian  and  Constantine,  the  distinction  between  the 
state's  and  the  emperor's  property  was  quite  obliterated.* 
But  we  see  this  confusion  of  supreme  jurisdiction  and  pro- 
perty prevailing  in  feudal  times  also,  where  it  lay  at  the  bot- 
tom of  the  whole  system.  The  suzerain  parted  with  lands 
acquired  by  conquest  by  and  for  the  nation  on  condition  of 
military  service,  and  the  lands  reverted  to  him  when  this  ser- 
vice could  no  longer  be  rendered.  He  was  thus  the  greatest 
and  highest  proprietor,  yet  the  allodial  properties,  which  ex- 
isted in  large  tracts  in  some  parts  of  Europe,  show  that  this 
doctrine  of  the  suzerain's  ultimate  ownership  was  not  with- 
out exception.  No  feudal  or  modern  state,  I  believe,  ever 
in  practice,  interfered  with  private  titles  on  this  pretext  of  an 
original  state  ownership,  except  in  cases  of  necessity  and 
with  offer  of  compensation. 

Conquest  itself  is,  when  viewed  from  a  jural  point  of  view, 
a  weak  right.      It  does  no  justice  to  any  indi- 

Right  of  conquest.         .  . 

vidual  rights  whatever  ;  at  least  according  to 
ancient  practice,  under  which  the  conqueror  was  absolute 
master  not  only  of  the  soil  but  of  all  things  that  could  be 
carried  away,  and  of  the  bodies  and  lives  of  prisoners.  Mere 
superior  power  cannot  of  itself  be  the  foundation  of  rightful 
government.  But,  as  far  as  international  relations  are  con- 
cerned, third  parties  accept  of  an  established  order  of  things 
which  does  not  injure  themselves,  and  conquest  is  generally 
followed  by  the  formal  consent  of  treaty-making  powers  con- 
cerned in  the  question.  As  far  as  the  people  of  the  territory 
are  concerned,  the  spoil  and  prisoners  have  been  looked  on  as 
compensation  for  the  wrongs  and  expenses  of  a  war  in  which 
the  victor  was  on  the  right  side,  while  the  remaining  inhabit- 
ants are  usually  left  in  the  enjoyment  of  their  property  and 

*  Comp.  Mommsen  Rom.   Staatsr.,  ii..  2,  p.  1008. 


202  POLITICAL   SCIENCE. 

of  some  political  rights,  although  it  may  be  with  heavy 
political  burdens. 

Conquest  is  jurally  and  morally  a  weak  source  of  right, 
which  can  impose  a  burden  on  no  man's  conscience,  except 
so  far  as  a  mere  balancing  of  evils  is  concerned.  The  per- 
sons affected  were  for  the  most  part  innocent,  they  had  no 
share  in  causing  the  alleged  wrongs,  they  have  not  been  con- 
sulted as  to  the  transfer  of  their  allegiance  except  in  quite 
modern  times.  Such  a  source  of  right  ought  not  to  be  pleaded 
beyond  the  mere  fact  of  giving  rise  to  a  new  state  of  things 
which  it  is  inexpedient  to  alter. 

It  is  worth  while  to  remark  here  that  in  many  nations  the 
prince's  relation  to  the  territory  was  quite  subordinate  to  his 
relation  to  the  people.  He  was  king  of  Israel  or  of  Judah, 
king  of  the  Medes,  king  of  the  French,  or  the  Saxons,  but 
the  land  got  its  name  from  the  nationality  and  gave  no  title 
as  first  to  the  sovereign.  The  people  was  the  prominent 
idea  in  the  term  state,  and  not  the  territory.  Territory  per- 
tained to  the  nationality.  The  king  of  France  meant  at  first 
the  king  of  the  country  where  the  Franks  lived,  but  it  may 
have  been  aided  in  supplanting  the  expression  "  king  of  the 
Franks  "  by  the  opinion  already  referred  to  that  the  land 
belonged  to  the  sovereign.  (Comp.  Maine's  Anc.  Law,  ch. 
iv.,  p.  ioo.) 

The  words  sovereign  and  sovereignty  are  applicable  to 
sovereignty  and  persons  and  to  states  ;  moreover  from  the  inti- 
sovereign  states.  mate  connection  between  the  state  as  a  politi- 
cal organism  and  the  territory  where  the  laws  prevail,  the 
territory  itself  may  be  called  a  sovereignty;  or  the  expression 
may  be  explained  in  the  last  case  with  greater  reason  as  de- 
noting something  held  in  sovereignty,  a  province  or  district 
which  is  not  dependent.  The  first  notion  in  the  word  was 
that  of  being  above  or  higher  than  others  in  power  and  juris- 
diction. Thus  the  sovereign  ruler  is  above  all  other  officers 
or  magistrates  and  above  all  the  individuals  belonging  to  the 


LAND,    SOVEREIGNTY,    PEOPLE.  203 

people.  The  quality  of  sovereignty,  however,  does  not  ne- 
cessarily imply  unlimited  power  or  unchecked  power  ;  much 
less  undelegated  power.  It  can  be  used  of  all  kingly  and 
imperial  power,  from  that  of  a  chief  officer  of  state  who  is 
absolute,  to  the  king  who  can  do  nothing  without  a  legislative 
assembly.  It  has  not,  however,  if  we  do  not  err,  ever  been 
applied  to  the  head  of  a  democratic  state  whose  office  ceases 
after  a  term  of  years.  For  the  most  part,  when  used  at 
present,  it  is  either  a  term  of  dignity  denoting  the  superior 
person  in  the  state  or  nation,  or  else  it  is  used  of  a  ruler  who 
can  control  the  policy  of  a  nation  towards  other  nations  in 
matters  of  diplomacy.  Thus  the  king  or  queen  of  England, 
although  having  in  matter  of  fact  an  exceedingly  limited 
power,  is  called  sovereign  to  denote  the  dignity  of  the  office 
as  above  all  others  in  the  kingdom,  or  as  having  constitution- 
ally the  power  to  control  foreign  relations,  a  power  unchecked 
in  theory,  yet  practically  not  expressing  the  sovereign's  per- 
sonal will. 

The  abstract  conception  of  sovereignty  is  thus  unfolded 
by  Mr.  John  Austin  in  the  sixth  of  his  lectures  on  "  the 
Province  of  Jurisprudence."  (i.,  p.  226,  ed.  3.)  "  If  a  de- 
terminate human  superior,  not  in  the  habit  of  obedience  to  a 
like  superior,  receive  habitual  obedience  from  the  bulk  of  a 
given  society,  that  determinate  superior  is  sovereign  in  that 
society,  and  the  society  (including  the  superior)  is  a  society 
political  and  independent.  To  that  determinate  superior  the 
other  members  of  the  society  are  subject ;  or  on  that  deter- 
minate superior  the  other  members  of  the  society  are  depend- 
ent. The  mutual  relation  which  subsists  between  that  supe- 
rior and  them  may  be  styled  the  relation  of  sovereign  and 
subject,  or  the  relation  of  sovereignty  and  subjection."  This 
definition  looks  at  fact  simply  and  has  nothing  whatever  to 
do  with  right.  The  habitual  obedience  would  seem  to  be 
absolute,  but  persons  called  sovereigns  at  the  present  day 
have  no  right  to  require  habitual  obedience  except  within  a 
very  narrow  sphere.  Subjection  is  now  used,  if  used  at  all 
in  politics,  of  relations  that  are  not  personal,  the  term   being 


204  POLITICAL   SCIENCE. 

retained  while  the  feudal  notion  has  left  it.  And  again,  few, 
I  presume,  of  the  subjects  of  the  sovereign  of  Great  Britain 
would  allow  themselves  to  be  called  dependants  on  the  sove- 
reign. 

But  what  is  the  sovereignty  of  a  state,  and  how  does  it 
comport  with  the  sovereignty  of  a  ruler.  In  the  intercourse 
of  nations,  certain  states  have  a  position  of  entire  independ- 
ence of  others,  and  can  perform  all  those  acts  which  it  is 
possible  for  any  state  to  perform  in  this  particular  sphere. 
These  same  states  have  also  entire  power  of  self-government, 
that  is  of  independence  upon  all  other  states  as  far  as  their 
own  territory  and  citizens  not  living  abroad  are  concerned. 
No  foreign  power  or  law  can  have  control  except  by  conven- 
tion. This  power  of  independent  action  in  external  and  in- 
ternal relations  constitutes  complete  sovereignty. 

This  definition  of  sovereign  states  would  be  inconsistent 
with  the  claim  of  sovereignty  which  has  been  set  up  in  this 
country  by  communities  called  states,  and  in  the  treaty  of 
1783  with  Great  Britain  called  sovereign  states  ;  which  how- 
ever, never  made  a  treaty  separately  with  foreign  nations, 
never  belonged  in  their  separate  capacity  to  the  community 
of  nations,  and  are  incapacitated  by  the  constitution  from 
performing  any  international  act ;  and  which,  moreover,  by 
the  same  constitution  are  precluded  from  doing  many  things 
within  their  own  territory  and  in  the  exercise  of  state  power, 
which  sovereign  states  do  and  must  do.  This  use  of  the  word 
sovereignty ,  and  indeed,  the  use  of  the  word  state,  shows  the 
poverty  of  political  language,  but  has  helped  on  far  greater 
evils  than  that  of  supplying  false  premises  for  syllogisms 
ending  in  secession. 

Is  the  sovereignty  of  the  state  a  term  emanating  from  the 
sovereignty  of  the  ruler,  or  is  the  ruler  properly  called  a 
sovereign  only  as  representing  the  state  ? 

The  state  stands  for  an  untold  amount  of  good  to  be 
secured  to  present  and  future  generations  by  a  just  and  wise 
government,  at  the  head  of  which  the  ruler  is  placed.  He 
is  a  means  for  a  great  permanent  end  ;  he  dies  and  some  one 


LAND,    SOVEREIGNTY,    PEOPLE.  205 

else  succeeds  to  him,  and  not  by  his  will  for  the  most  part 
but  by  law  of  the  state.  He  disobeys  the  law  and  seeks  to 
overturn  it  ;  another  is  substituted  for  him,  and  all  things  go 
on,  it  may  be,  better  than  before.  All  this  shows  that  the 
ultimate  power  in  theory  rests  with  the  state  or  the  people 
constituting  it,  and  that  the  prince  is  a  delegate  or  deputed 
sovereign.  This  of  course  touches  the  source  of  his  power 
and  the  object  for  which  it  is  granted.  The  power  itself  may 
be  absolute,  and  the  grant  may  have  been  made  in  remote 
ages.  The  prince  is  a  vicar  of  God  just  as  receivers  of  tri- 
bute are  "  God's  ministers,  attending  continually  for  this  very 
thing."  But  he  is  such  because  the  state  and  its  authority 
is  from  God,  and  because  he  fulfils  the  end  for  which  the 
helm  of  state  is  entrusted  to  him.  If  some  democrats  of  the 
French  school  have  talked  of  cashiering  kings,  the  grossness 
of  taste  and  want  of  reverence  for  old  dignities  was  the  re- 
sult of  an  ill  use  of  sovereign  power.  If  the  French  kings 
had  felt  that  they  were  created  to  minister  rather  than  to  be 
ministered  unto,  that  their  power,  called  sovereign,  was  dele- 
gated to  them,  the  outrages  of  an  extreme  reaction  against 
their  sway  might  have  been  spared  to  the  world. 

§73- 
The  question  can  now  be  asked,  if  the  state  or  the  people 
of  the  state  is  sovereign,  who  are  the  people  ? 

What  is  the  people  ? 

Ihe  answer  will  vary  with  the  purpose  which 
dictated  the  question.  If  the  question  is  who  are  the  people  for 
whose  sake  the  state  is  founded  or  administered  or  reformed, 
the  answer  must  be  "  every  man,  woman,  and  child,  now  liv- 
ing, and  all  that  shall  come  after  them."  If,  again,  it  be 
asked,  what  is  intended  by  a  public  act  of  a  people  occupying 
a  large  territory,  as,  for  instance,  the  adoption  of  a  new  form 
of  government,  or  the  choice  of  a  line  of  kings,  the  answer 
must  be  that  if  the  people  act  at  all,  they  act  either  in  masses 
constitutionally  gathered  at  various  points  through  a  country, 
or  by  representatives  constitutionally  appointed,  or  appointed 
in  some  of  those  rude  methods  of  which  history  furnishes  so 


206  POLITICAL   SCIENCE. 

many  examples.  The  people,  in  this  case,  will  be  a  much 
smaller  body,  as  far  as  active  participation  is  concerned,  than 
the  whole.  They  will  be  the  active  citizens,  or  the  cives  Optimo 
jure,  those  qualified  to  do  political  acts.  In  general,  all  politi- 
cal acts  which  are  done  by  the  representatives  of  the  people  are 
popular  acts.  For  the  most  part  even  in  democracies  the 
people  are  a  small  body  compared  with  the  whole  number  of 
inhabitants.  In  Athens,  the  demus  or  active  people,  the  as- 
sembly of  citizens,  was  never  over  20,000,  and  seldom  were 
more  than  6,000  present  in  public  assemblies.  Thus  slaves 
and  foreign  residents,  all  females  and  male  minors,  were 
counted  out.  The  Roman  populus,  after  the  plebs  reached 
political  power,  was  the  mass  of  citizens  able  to  vote  in  the 
comitia.  In  other  governments,  where  suffrage  has  been  more 
extended,  the  people,  as  a  community  invested  with  political 
rights,  will  include  one  quarter,  at  the  most,  of  the  inhabitants, 
but  a  smaller  proportion  generally  are  found  at  elections.  Then 
this  same  people,  having  chosen  their  political  officers,  no 
longer  act  in  person,  but  entrust  the  greater  part  of  the 
power  in  the  state  to  representatives  ;  and  this  is  inevitable  in 
all  free  states  excepting  such  as  are  confined  to  a  city  and  its 
near  neighborhood. 

There  is  also  a  distinction  of  great  importance  to  be  made 
between  the  people  considered  as  a  mass  of  individuals,  and 
the  people  acting  collectively  in  a  political  community.  The 
individuals  are  those  who  have  rights,  obligations,  and  wants, 
who  are  united  in  \  public  body,  and  from  whom  public  power, 
in  theory  or  in  fact,  emanates.  Besides  these,  there  is  no 
third  political  entity  such  as  the  people  of  New  York  or  of 
Chicago,  except  so  far  as  municipal  powers  are  given  to  these 
communities.  It  sometimes  happens  in  free  states  that  as- 
semblies of  men,  gathered  together  by  private  persons,  call 
themselves  the  people.  But  there  is  no  people  except  the  po- 
litical community  and  the  individual  members  of  the  same. 
All  other  assemblages  for  the  most  innocent  purposes  have  no 
political  voice  whatever.  They  may  have  a  right  to  assemble, 
but  they  can  decree  nothing,  they  can  only  express  an  opinion. 


LAND,    SOVEREIGNTY,    PEOPLE.  207 

The  state  (comp.  §  57)  must  be  an  existing  entity  on  some 
Relations  of  a  state  Part  °f  tne  earth's   surface.     If  it  be  really  a 
to  its  territory.  state>  nQ  ot]ler  body  having  the  same  proper- 

ties of  a  sovereign  state  can  co-exist  with  it  within  the  same 
bounds,  or  exercise  any  jurisdiction  nor  do  any  political  act 
there  except  by  its  consent.  It  may  be  limited  by  its  con- 
stitution, as  to  the  actions  which  it  can  perform  within  its 
bounds  and  its  amount  of  jurisdiction,  as  well  as  to  the  ex- 
tent of  its  power  in  dealing  with  other  like  states,  but  it  ne- 
cessarily is  so  far  supreme  in  a  certain  territory,  as  to  exclude 
in  certain  things  all  other  power.  As  for  territory  and  the 
question  by  what  right  does  a  state  exert  its  state  power 
there  and  no  where  else,  except  in  a  limited  degree  on  the 
high  sea  and  wherever  external  war  requires,  the  theory  of 
the  state  is  entkely  silent,  just  as  social  contract  and  other 
hypotheses  of  a  state's  origin  are  silent.  Historical  causes 
running  through  ages  make  it  easier  for  men  within  certain 
bounds  to  unite  than  within  certain  others.  Causes  of  a  vio- 
lent kind  as  conquest,  others  more  just  as  the  accident  of 
family  inheritance  or  mutual  security  against  a  strong  power 
or  assimilation  of  social  traits,  bring  political  bodies  together  : 
other  causes  dissolve  political  unions.  But  the  fact  must  be 
accepted,  and  the  long  existence  of  a  government  doing  its 
proper  work  gives  it  rights,  whatever  may  have  been  its 
origin.  It  has  a  right  to  authority  in  a  certain  territory  be- 
cause it  is  in  possession  and  does  its  work  tolerably  well. 


CHAPTER  IV. 

SPHERE   AND    ENDS   OF   STATE. 

§74- 
A  QUESTION  of  extreme  importance  in  the  state  is,  what  is 
Sphere  of  state-  the    proper   sphere    within    which    state-action 

action.    Ends  of  the  _  ,  .  , 

state.  ought  to  move  ?     Or  the  question  may  be  put 

in  a  form  different  in  terms  but  in  substance  the  same,  what 
are  the  ends  which  a  state  or  nation  ought  to  seek  ?  Does  it 
exist  only  to  protect  the  rights  of  the  individuals  living  within 
the  territory — to  defend  their  bodies  and  goods,  as  the  ex- 
pression is;  or  must  it  have  a  wider  care  of  their  welfare,  reach- 
ing to  all  the  interests  of  education,  culture,  morality  and 
religion,  to  the  assistance  of  the  poor,  to  the  encouragement 
of  industry  and  of  intercourse  ?  Still  further,  does  the  office 
of  the  state  require  it  to  shield  the  individual  from  impending 
evil,  or  must  its  intervention  begin,  when  the  rights  of  the 
individual  are  invaded  ?  With  our  view  of  the  extent  of  the 
state's  sphere,  our  view,  also,  of  the  duty  to  punish  offenders 
of  the  law,  must  vary.  If  there  were  no  duty  but  to  protect 
the  body  and  goods  of  individuals,  it  does  not  appear  how 
there  could  be  any  criminal  law,  which  contemplates  the  state 
or  the  people  as  the  aggrieved  party,  because  the  reparation 
of  the  individual  is  not  punishment  but  payment  of  due. 
Thus  we  have,  on  one  construction  of  the  state,  a  community 
watched  over  in  all  its  interests,  a  ri-ginic  going  far  beyond 
the  demands  of  justice  and  of  security,  the  perpetual  presence 
of  power  which  may  meddle  with  the  affairs  of  private  per- 
sons even  in  the  exercise  of  their  acknowledged  rights ;  or, 
on  the  contrary,  a  government  where  all  forward  movement 
must  come  from  single  persons  or  bodies,  while  the  state  itself 
will  be  as  much  out  of  sight  as  possible,  and  thereby  fulfil 


SPHERE  AND  ENDS  OF  STATE.  209 

its  true  office  of  only  seconding  and  securing  such  as  need  its 
aid. 

It  is  impossible  for  those  who  seek  to  carry  out  the  narrow- 
est view  of  the  state's  sphere  to  make  a  consistent  explana- 
tion of  what  they  themselves  hold  to  be  necessary.  We 
might  ask  them  why,  on  their  theory,  it  is  not  enough  to 
make  rights  real  by  opening  the  courts  to  the  wronged,  and 
helping  them  to  right;  themselves  by  the  servants  of  justice 
enforcing  the  judicial  decision.  Why  prevent  the  occurrence 
of  wrongs  by  any  kind  of  force  like  that  of  a  police?  Or 
we  might  ask  them  whether  any  government  has  existed, 
any  code  of  laws  ever  been  framed,  in  which  "  body  and 
goods  "  alone  were  the  subject-matter  of  legislation.  It  is  a 
great  thing  to  allow  the  individual  to  develop  himself  in  the 
community,  to  cultivate  his  own  individual  powers  in  his  own 
way  ;  but  it  is  of  equal  importance  to  mankind,  to  the  pro- 
gress and  welfare  of  the  world,  that  the  interests  of  the  whole 
body  should  be  cared  for.  >  The  problem  as  thus  presented 
seems  to  combine  two  opposite  tendencies — a  care  for  the 
whole  and  a  care  for  the  individual.  How  to  adjust  and 
unite  these, so  that  the  individual  shall  not  be  unduly  con- 
trolled, nor  the  general  welfare  neglected,  is  a  difficult  prob- 
lem, but  it  must  be  solved,  somehow  or  other.  (Comp.  what 
is  said  below,  §§  76,  77.) 

It  may  be  of  use  at  this  stage  of  our  subject  to  attempt  to 
arrange  the  different  particulars  which  make  up  the  state's 
offices  or  duties,  without  counting  those  relating  to  external 
bodies  or  governments. 

(1.)  First  we  have  the  office  of  giving  redress  to  the  indi- 
vidual or  family  or  association  which  has  been  wronged.  Of 
this  enough  has  been  said,  and  that  this  is  an  essential  office 
of  the  state  will  not  be  disputed. 

(2.)  It  is  also  properly  an  office  of  the  state  to  secure  the 
individual  from  injury  beforehand,  to  prevent  the  invasion  of 
rights.  Otherwise  we  must  say  that  all  force,  as  far  as  the 
individual  is  concerned,  is  to  be  exerted  in  enabling  him  to 
obtain  redress  and  that  he  ought  on  a  right  theory  to  have  no 
14 


2IO  POLITICAL   SCIENCE. 

protection  until  he  is  injured.  But  surely  no  one  can  main- 
tain  this  proposition.  The  guarding  against  wrong  is  pre- 
vention of  wrong  ;  the  sense  of  security  is  essential  to  all 
steady  prosecution  of  the  work  of  life  ;  if  the  public  force 
cannot  keep  off  violence  but  only  redress  the  injuries  occa- 
sioned by  it,  what  will  protection  be  worth  in  cases  innumer- 
able. Prevention  is  better  than  cure.  The  same  force 
that  gives  redress  can  save  the  necessity  of  seeking  redress. 

State  action,  in  all  other  cases  beside  these  two,  does  not 
provide  for  the  just  claims  of  a  single  individual  family  or 
small  community,  but  for  the  wants  or  rights  of  the  entire 
community.  Whatever  else  a  state  does,  may  be  said  to  aim 
at  the  good  of  the  whole  first,  but  its  office  as  defender  of 
justice  aims  originally  at  the  good  of  the  personal  subject  of 
rights.  In  the  other  work  of  the  state  it  may  do  too  much  or 
do  too  little  and  yet  be  a  state ;  in  the  work  of  protecting 
rights  it  is  doing  what  no  state  has  a  right  to  neglect.  One 
state  may  have  no  public  system  of  education,  another  may 
have  a  complete  one  ;  both  are  states,  if  they  maintain  jus- 
tice, but  one  is  less  perfect  than  the  other,  because  it  fails  to 
make  provision  for  the  education  of  all.  Again,  much  of  the 
work  except  the  administration  of  j?tstice  may  be  concurrently 
undertaken  by  individuals  and  by  the  community ,  as  will  be 
the  policy  more  or  less  in  all  free  governments.  A  person  can 
found  colleges,  support  the  poor,  cherish  the  fine  arts,  and 
he  may  do  this  better  than  the  state  can.  So  that  there 
may  be  in  civilized  societies  a  continual  doubt  whether  on 
the  whole  true  progress  can  best  be  secured  by  one  or  by  the 
other  of  these  two  agents.  But  on  the  other  hand  the  state 
is  the  monopolist  of  the  administration  of  justice,  and  for 
individuals  to  invade  this  province  would  be  to  attempt  the 
state's  destruction.  Finally,  the  state's  action  in  some  of  these 
departments  may  be  very  limited  and  dependent  on  circum- 
stances. There  may  be  no  poor  to  receive  public  charity,  no 
sense  of  the  value  of  the  fine  arts,  and  no  need  of  public  and 
connected  ways  of  communication. 

(3.)  With  these  explanations  we  add  in  the  third  place  that 


SPHERE   AND   ENDS   OF   STATE.  211 

the  state's  sphere  of  action  may  include  a  certain  degree  and 
kind  of  care  of  the  outward  welfare  of  the  community ,  as 
of  industry,  roads,  health. 

(4.)  It  may  embrace  all  cultivation  of  the  spiritual  nature 
by  educating  the  religious  nature,  the  moral  sense,  the  taste, 
the  intellect.  It  may  enforce  moral  observances,  may  protect 
and  even  institute  religious  worship,  and  may  provide  for  the 
wants  of  the  needy  and  the  distressed.  In  other  words  it 
may  express  in  action  the  intellect,  the  aesthetic  feeling, 
moral  sense,  religious  feeling,  and  humanity  of  a  community 
of  men.  //  may  do  all  this,  I  mean  to  say,  without  necessa- 
rily going  out  of  its  own  proper  province.  Whether  it  ought 
actually  to  provide  for,  as  well  as  protect,  all  these  great  inter- 
ests is  a  point  to  be  discussed  in  the  future.  They  are  named 
at  present  as  the  departments  from  which  by  no  just  theory  the 
state  can  be  excluded.  And  if  there  is  any  need  of  limitation 
of  state  functions  in  order  to  protect  the  individual  within  his 
sphere  of  free  activity,  it  will  be  considered  hereafter. 

In  order  to  do  its  work,  the  state  must  have  adequate 
means  at  its  disposal  for  the  purpose  of  protecting  and  secur- 
ing all  these  interests.  These  means  in  general  are  armed 
force  for  preventing  or  redressing  wrong  from  within  or  with- 
out ;  taxation  on  some  just  principle,  and  a  police  power  for 
the  purposes  of  general  security.  More  important  still  is  the 
spate's  power  of  punishing pirtdic  wrongs,  which  is  a  different 
form  of  justice  from  that  which  consists  in  repairing  private 
wrongs.     (Comp.  §  17,  §  105.) 

§  75- 
But   before  entering  into  the    discussion  of  the  office    or 
orfire  of  the  state  sphere  of  the  state,  it  seems  necessary  to  show 

far   wider    than    to  .  .  . 

protect  individuals,  that  its  protection  is  required  for  something 
more  than  what  may  be  called  the  jural  interests  of  individ- 
uals or  of  associations  of  men.  In  attempting  to  show  this, 
we  grant  that  there  may  be  plausible  explanations,  on  the 
ground  of  the  defence  of  rights,  for  many  activities  of  the 
state,  which  are  often  referred  to  its  office  of  protecting  and 


212  POLITICAL   SCIENCE. 

promoting  the  general  welfare.  Thus  its  interference  in  the 
education  of  the  young  may  be  explained  from  their  right  to 
be  educated  by  their  parents  who  are  unwilling  or  unable  to 
discharge  their  obligation,  or  also  on  the  ground  that  educa- 
tion is  a  means  for  securing  and  preventing  infractions  of 
rights.  A  police  at  night  may  be  defended  by  the  right  of 
men  to  have  undisturbed  sleep  and  exemption  from  fear. 
Sanitary  regulations  may  be  explained  on  the  ground  of  the 
right  of  life.  Moral  legislation  may  be  said  to  aim  at  keep- 
ing the  young  or  family  relations  in  their  rightful  condition  ; 
and  even  public  religion  may  be  claimed  to  be  the  great  aegis 
of  rights  within  the  state. 

Some  of  these  explanations  take  the  ground  that  certain 
state  agencies  immediately  protect  individual  rights.  Others 
are  vindicated  because  they  prevent  infractions  of  rights. 
But  the  moment  you  go  beyond  that  action  which  directly 
repairs  or  redresses  injured  individuals,  you  reach  such  as  has 
no  particular  person  for  its  object.  Thus  a  preventive  police 
has  generally  no  wants  of  some  special  person  in  view,  but 
the  possible  wants  of  a  community.  This  power,  then,  con- 
templates a  society  or  a  portion  of  it  as  a  whole,  and  you 
must  either  approve  of  it  as  such,  or  must  confess  that  it  goes 
beyond  the  state's  legitimate  sphere.  In  the  same  way,  san- 
itary law  or  police  has  no  particular  person  or  even  the  pres- 
ent time  in  view.  If  individual  householders  affect  or  endan- 
ger health  by  throwing  garbage  into  the  street,  they  may 
commit  an  offence,  but  against  whom  ?  Not  against  any 
person  who  cannot  show  that  that  garbage  affected  his  health. 
Much  more,  when  swamps  are  drained  and  sewers  built,  no 
one  person's  rights  are  provided  for ;  and  it  cannot  be  shown 
that  the  state  or  the  municipality  created  by  the  state,  does 
an  injury  to  an  individual  or  household  by  neglecting  this  part 
of  its  duty. 

The  jural  relations  of  men  are  fulfilled  mainly  by  non-inter- 
ference. The  right  of  life  does  not  require  my  neighbor  to 
take  care  of  my  life  or  to  cure  me  when  I  am  ill,  but  not  to 
kill  or  wound  me.      If  he  owns  a  swamp  which  gives  me  the 


SPHERE   AND    ENDS   OF   STATE.  21 3 

malaria,  he  is  not  committing  an  injury  in  letting  the  swamp 
stay  as  it  was  when  he  bought  the  land  ;  if  he  directly  propa- 
gates disease  with  his  eyes  open  by  foul  drains  when  he  could 
prevent  it,  he  may  be  amenable,  not  however  for  injuring  any 
particular  person  but  for  a  wrong  done  to  the  community. 

The  needs  of  human  society  are  far  from  being  fully  met  by 
the  jural  part  of  legislation  which  allows  an  injured  party  to 
complain  of  another.  But  can  voluntary  action  or  association 
supply  the  deficiency  ?  They  can  do  much  ;  nay,  even  within 
the  jural  sphere  they  can  supersede  much  of  the  action  of 
public  courts  by  means  of  arbitration.  But  even  in  societies 
where  this  voluntary  power  has  free  movement,  there  is  much 
which  it  will  not  do,  and  only  at  an  advanced  state  of  state- 
life  in  free  communities  do  associations  put  forth  their  strength. 
There  are  many  enterprises  of  importance,  which  promise  no 
speedy  remuneration.  There  are  others  which  cannot  be 
carried  on  by  associations  without  the  state's  sanction  or  the 
consent  of  persons  who  are  not  partners.  There  may  be 
others  still  too  vast  or  general  for  any  but  the  state  to  carry 
through,  or  which  would  confer  too  great  power  on  private 
corporations.  But  for  the  control  of  the  state  over  them  they 
would  cut  it  up  by  conflicting  private  interests,  not  having 
the  power,  but  having  all  the  jealousies  of  feudal  barons. 

The  state  is,  in  truth,  a  large  association,  stretching  over  a 
The  state  is  a  great  vast  territory,  acting  by  itself  and  empowering 
association.  others  to  act,  leaving  individuals  in  their  free- 

dom, but  providing  for  numerous  wants  of  a  whole  commu- 
nity, instead  of  the  one  or-two  with  the  relief  of  which  ordinary 
associations  are  entrusted.  It  can  with  ease,  through  its  gen- 
eral organization,  touch  society  constantly  at  a  multitude  of 
points,  while  jural  institutions  touch  them  at  very  vital,  in- 
deed, but  at  single  points.  If  a  great  association  under  pri- 
vate control  and  the  jural  state  were  to  attempt  to  get  along 
together,  it  would  manifestly  be  a  failure.  Sometimes  a  sin- 
gle association  incorporated  by  the  state,  although  limited  in 
its  range,  domineers  in  modern  times  over  the  state  itself, 
until  in  a  conflict  it  is  crushed.     It  is  not  conceivable  that  an 


214  POLITICAL   SCIENCE. 

association,  so  vast  as  that  wc  have  supposed,  should  not 
usurp  power,  if  an  organized  state  were  in  existence,  or  be 
developed  into  an  organization,  if  there  were  none.  The  in- 
terests of  men  demand  unity  of  law  and  one  power  every- 
where, in  order  that  life  may  be  on  one  undisturbed  plan,  so 
that  a  usurper,  who  would  introduce  it  where  it  was  not, 
would  be  submitted  to  in  his  lifetime,  and  be  venerated  after- 
wards. ' 

It  is  hardly  necessary  to  say  that  these  wants  in  detail  can- 
not be  met  by  individuals  whose  power  is  limited  and  local, 
or  by  a  multitude  of  small  communities  or  municipalities. 
These  last  may  be  necessary  means  for  such  an  end,  as  ser- 
vants of  the  state,  but  there  is  need  of  a  power  giving  unity 
and  bringing  all  the  portions  of  a  territory  into  close  relations, 
binding  them  together  for  other  purposes,  as  the  jural  state 
binds  them  for  justice.  One  organized  power  must  do  all, 
both  the  jural  work,  and  the  work  that  embraces  other  great 
interests.  This  would  tie  a  people  together  for  all  time.  It 
would  use  its  power,  necessary  for  the  administration  of  justice, 
in  securing  other  great  good  of  various  kinds,  thus  preventing 
the  necessity  of  two  great  powers  which  could  conflict.  It 
would  or  might  leave  the  path  open  for  the  action  of  individ- 
uals or  associations,  in  a  wide  part  of  the  field  in  which  its  own 
agency  is  put  forth.  For,  as  we  have  said,  in  a  part  of  its 
sphere  it  may  act  concurrently  with  individuals  or  associations, 
or  act  through  them,  or  not  act  at  all  ;  and  it  is  no  where 
necessarily  exclusive  and  a  monopolist  except  in  the  depart- 
ments of  justice  and  of  public  forcer 

It  is  further  deserving  of  notice  that  if  men  are  associated 
Humanity  ex-     in  a  state  and  form  a  communitv,  they  will  carry 

presses  itself  in  the  .  ,.,.  .,.'  r  . 

state.  their  natural  feelings  with  them,  so  far  as  these 

can  be  subject  to  common  rules  and  common  action  for  this 
community.  A  union  of  men  for  instance  will  have  sympathy 
for  distress  far  more  than  men  in  a  savage  or  semi-savage 
life,  and  this  impulse  may  be  found  to  be  best  met  by  joint 
action.  The  feeling  is  not  that  a  poor  person,  or  orphan, 
or  widow,  has  any  right  to  help  in  the  jural  sense  ;  but  it  is  a 


SPHERE  AND  ENDS  OF  STATE.  21 5 

moral  emotion  and  therefore  must  move  to  action  according 
to  its  strength  and  the  power  of  the  individual  to  relieve  that 
which  appeals  to  his  humanity.  The  poor  man  or  orphan 
cannot  create  obligation  by  his  wants,  but  the  very  word  hu- 
manity  shows  that  the  motive  for  action  lies  in  man's  nature, 
which  nature,  the  more  civilizing  arc  the  influences  which 
cultivate  it,  will  be  the  more  prone  to  express  itself  by  indi- 
vidual and  by  common  action.  The  common  movement  may, 
if  one  chooses  to  think  so,  be  a  supplement  to  individual 
movement,  but  the  fact,  that  in  a  highly  cultivated  christian 
community  it  always  has  expressed  itself  in  usage  and  Taw, 
shows  one  or  both  of  two  things,  that  an  advanced  society 
feels  newer  and  stronger  promptings  towards  such  works  of 
humanity  than  it  did  at  an  earlier  time,  or  that  it  has  found 
out  by  experience  that  the  whole  by  its  superior  organization 
can  do  some  things  to  which  individuals  are  unequal. 

Will  it  be  said  that  by  such  state-action  individuals  are  not 
alike  benefited,  and  so  there  is  a  sort  of  injustice  in  it  ?  The 
ready  answer  is  that  this  is  unavoidable,  and  that  no  one  of 
these  modes  of  action  ought  to  pertain  to  society  and  the 
state  which  on  the  whole  does  not  contribute  to  the  com- 
mon good.  When  courts  are  instituted  for  the  redress  of 
wrongs,  multitudes  go  through  the  world  who  may  never 
have  been  wronged,  and  yet  were  there  no  courts  they  might 
have  been  wronged  daily.  Public  roads  are  of  no  direct 
good  to  those  who  never  travel.  Great  breakwaters  and  a 
system  of  light-houses  help  shippers  only  in  the  first  instance; 
and  men  complain  of  taxes  for  such  constructions,  forgetting 
that,  apart  from  humanity  aiming  at  the  safety  of  sailors, 
the  prices  of  imports  would  be  affected  by  the  greater  risks 
of  vessels. 

But  more  important  still  is  the  consideration  that  a  com- 
The  state  or  com-  munity,  whatever  there  is  of  voluntary  action 
munity  has  rights.  jn  forrn£ngr  jt  Qr  in  it,  is  a  natural  community 
called  by  natural  law  into  being, — and  indeed  in  some  sense 
is  a  supernatural  community,  since  without  or  against  its  own 
will  perhaps,  and  certainly  for  the  most  part  without  precon- 


2l6  POLITICAL   SCIENCE. 

ceived  theory,  it  is  formed  into  a  community  and  into  a  po- 
litical life.  It  has  thus  a  destination  and  therefore  rights  as  a 
whole,  it  must  have  powers  to  fulfil  its  destiny,  it  has  a 
sphere  of  action  in  which  not  only  the  individual  can  develop 
himself,  but  there  can  be  progress  such  as  lies  beyond  the 
reach  of  the  individual  or  of  associations. 

It  it  impossible,  then,  to  draw  exact  lines  between  those 
kinds  of  state  action  which  are  needed  by  the  individual  and 
those  which  directly  concern  society.  If  in  theory  they  could 
be  separated,  in  practice  they  would  concur  or  thwart  one 
another.  If  any  one  finds  his  mind  satisfied  by  the  explana- 
tion of  state-action  for  the  whole  on  the  ground  that  it  helps 
to  protect  the  individual  rights,  or  defends  the  body  and  goods 
by  its  indirect  action,  he  is  welcome  to  his  narrow  opinion. 
We  must  believe  that  it  is  a  great  function  of  the  state  to  su- 
perintend general  objects  and  interests  for  their  own  sake. 

The  sphere  of  the  state,  then,  may  reach  as  far  as  the 
nature  and  needs  of  the  man  and  of  men  reach.  I  do  not 
say  must  but  may  reach  ;  and  the  people,  the  age,  the  senti- 
ments expressed  in  a  constitution  must  decide  how  far  it 
actually  shall  reach.  If  it  is  a  need  growing  out  of  man's 
nature  that  he  come  into  intercourse  with  his  fellows,  the 
state  may  or  must  have  a  constant  supervision  of  those  neces- 
sities by  building  roads  or  having  them  built,  by  improving 
harbors,  by  coining  or  fixing  the  standard  of  money,  by 
making  commercial  treaties  with  foreign  states  and  the  like, 
yet  so  that  freedom  of  trade  in  peace  may  not  directly  or  in- 
directly be  interfered  with.  If  compassion  is  a  part  of  man's 
nature,  and  the  people  of  the  state  belong  to  it  and  to  each 
other  as  they  do  not  to  any  other  part  of  the  world,  the 
state  may,  for  anything  that  appears,  administer  to  the  wants 
of  the  poor,  yet  so  that  private  persons  or  unions  of  persons 
may  do  the  same.  If  religion  is  judged  to  be  essential  for 
the  well-being  of  a  community,  the  state  may  provide,  for 
any  thing  that  appears,  for  religious  order  and  worship,  yet 
so  that  freedom  of  worship  among  private  persons  or  unions 
of  persons  may  not  be  interfered  with. 


SPHERE   AND   ENDS   OF   STATE.  217 

• 
In  those  departments  of  its  activity  where  the  state,  indi- 
viduals and  associations  can  concur,  as  in  helping  the  poor, 
the  state  evidently  does  not  do  this  work  instead  of  individu- 
als, for  then  their  additional  help  would  be  superfluous,  or  to 
supply  what  they  have  failed  to  perform,  for  then  there 
should  have  been  an  equitable  apportionment  of  burdens  on 
each  person  ;  but  because  the  state  is  a  close  union  something 
as  a  family,  having  from  its  compact  organization  and  from 
its  ends  the  power  of  doing  many  things  better  than  any  one 
else  can.  The  rules  to  govern  its  action  are  its  ability  and 
the  necessity  for  its  action.  If  so,  the  duty,  depending  on 
its  own  judgment,  is  clear. 

The  state  in  doing  the  work  thus  defined  is  a  means  to  an 
end,  not  an  end  for  which  the  community  exists,  nor  a  means 
for  the  ruler  to  use  according  to  his  pleasure,  but  a  means 
for  the  community  that  it  may  do  its  appointed  work  in  the 
world.  As  an  indispensable  end,  without  which  the  commu- 
nity could  not  subsist,  it  has  rights  and  obligations  ;  its  rights, 
(as  of  property)  it  can  enforce  against  its  own  subjects  and 
foreign  countries  ;  but  its  obligations  it  can  be  compelled 
only  by  foreign  countries  to  perform  ;  it  can  resist  with 
tolerable  impunity  just  claims  of  a  domestic  nature,  such  as 
the  demands  of  home  creditors.  But  this  is  the  impunity  of 
power  ;  every  righteous  state  is  bound  to  provide  a  way  by 
which  all  jural  claims  upon  it  can  be  satisfied. 

$76. 
In  exercising  its  power  a  state  may  come  into  collision  with 
Departments  of    the  rights  and  liberties  of  individuals.    A  very  im- 

state  action  consid-  _ 

cred.  portant  point  confronts  us  here,  namely,  to  what 

extent,  if  to  any,  the  rights  of  the  citizen  must  be  limited  by 
righteous  law,  and  another,  partly  theoretical  but  practical 
also,  of  equal,  importance,  touching  the  limits  of  state  power. 
These  points  bear  upon  one  another,  for  the  limits  of  state 
power,  if  fixed  at  all,  must  be  fixed  by  taking  the  rights  and 
freedom. of  the  individual  into  view.  We  propose,  however, 
first,  to  consider  at  some  length,  some  of  the  departments  of 


2l8  POLITICAL   SCIENCE. 

state  action  which  have  been  already  simply  mentioned,  and 
in  connection  with  them  to  look  at  their  bearings  on  personal 
rights,  then  to  inquire  into  the  limitation  of  state  power,  the 
organization  of  the  state,  its  punishing  power,  and  to  close  this 
part  of  our  work  with  some  remarks  on  political  ethics. 

1.  Our  first  branch  of  state  action  was  that  redress  to  the 
s.ate  must  admin-   wronged    which    is    an  office    the  state  cannot 

neglect.  Here  the  creation  of  courts  open  to 
the  humblest  as  well  as  to  the  highest  is  the  state's  principal 
obligation.  It  has  a  right  to  try  offences  against  itself  or  its 
government,  but  only  in  an  equitable  way,  leaving  open  to 
the  accused  every  means  of  defence  which  can  be  used  be- 
tween man  and  man.  It  is  bound  to  appoint  judges  who 
have  no  biases,  and  to  keep  them  from  biases  by  all  the  ar- 
rangements of  the  courts.  It  is  right  for  it  also  to  provide 
the  poor  with  a  helper  or  counsel  when  they  can  pay  for  none 
in  all  criminal  cases.  Some  of  the  provisions  which  belong 
to  this  head  are  what  have  been  called  political  liberties,  and 
will  be  considered  in  another  place.    (Comp.  §  92.) 

2.  The  state  must  aim  to  secure   the  individual  against  in- 
state must  pro-   vasion  of  his  rights.      This  is  to  be  done  by  an 

tect  rights  from  in- 

vasion.  armed  or  a  police  force   ever  ready  to  be  put 

into  motion  towards  any  quarter  where  danger  is  threatened. 
But  these  forces  are  needed  for  other  objects  also,  and  will 
be  best  considered  in  connection  with  the  power  of  taxation 
and  other  powers  by  which  the  state  prevents  evil  or  carries 
out  its  will. 

It  may  however  be  observed  in  this  place  that  such  de- 
fence of  the  individual,  provided  for  beforehand,  is  relatively 
of  far  greater  importance  in  civilized  lands,  than  the  protec- 
tion against  public  enemies  by  an  armed  force.  The  security 
provided  not  only  prevents  all  aggressions  to  which  the  de- 
fenceless would  be  exposed,  but  also  enables  industry  to  cal- 
culate for  the  future  and  to  feel  no  concern  for  its  own  pro- 
tection. The  same  present  power  inspires  the  evil-minded 
with  fear,  and  those  who  arc  engaged  in  their  life-work  with 
constant  trust. 


SPHERE  AND  ENDS  OF  STATE.  2  10 

^77- 
3.   The  state  may  provide  for  the  outward  welfare  of  the 
temaypro-   community  or  of  its  members  as  it  respects  in- 

vide    for    outward  ,  .      .  c  , 

welfare.  dustry  or  labor  and  capital,  ways  01  locomotion, 

and  health  or  sanitary  condition. 

It  may,  indeed,  be  contended  with  some  reason,  that  in  as- 
signing these  officers  to  the  province  of  the  state  we  have  not 
travelled  beyond  the  limits  of  its  necessary  action.      In  regard 
to  industry  or  the  rights  of  labor,  it  may  be  said  that  very 
much  of  what  is  called  its  protection  is  the  removal  of  impedi- 
ments out  of  the  way  of  labor  which  the  greed  of  capitalists, 
or  laws  made  in  the  interests  of  the  upper  classes  have  created. 
And  on  the  other  hand  it  may  fairly  be  contended  that  a  pro- 
tective tariff  ought  not  to  be  thought  of,  provided  it  throws 
obstacles  in  the  way  of  all  other  industries  by  partiality  to  one. 
So  it  may  be  said  of  roads,  that  they  carry  out  practically  the 
right  of  locomotion,  which  would  almost  cease,  if  the  traveller 
either  trespassed  on  the  lands    of  private    owners    or    went 
through  woods  and  over  streams  without  a  beaten  path  or 
bridges.     And  again,  the  care  of  public  health,   it  may    be 
urged — but  with  far  less  reason,  except  where  a  man  by  what 
he  does  exposes  the  health  of  others— is  but  a  protection  of 
the  right  of  life.      But,  on  the   other  hand,  it  is  fair  to  assert 
that  states  can  do  much  in  the  way  of  clearing  the  road  of  in- 
dustry from  obstacles,  aside  from  those  provisions  which  con- 
sist in  defending  the  rights  of  industry  against  wrongs  arising 
from  usage  or  ancient  law.      For   instance,  it  is  not  so  clear 
that  the  state  is  bound  to  do  away  with  the  truck-system,  so- 
called,  because  it  interferes  with  the  rights  of  labor,  as  because 
it  is  inhumane,  and  a  similar  remark  may  be   made  in  many 
other  cases.      And  often  there  are  concurrent  reasons  for  sim- 
ilar public  action.      Again,  the  right  of  locomotion   does  not, 
as  I  conceive,  require  the  making  of  roads  and  bridges  when- 
ever the  right  could  not  otherwise  be  realized  ;   and  the  con- 
struction of  roads  up  to  every  man's  door  would  not  certainly 
be    contended    for.     Sanitary    regulations    tend    to    preserve 


220  TOLITICAL   SCIENCE. 

health  and  life,  but  only  in  an  indirect  way,  and  so  they  are 
not  a  necessary  part  of  state-action.  It  is  not  evident  that  a 
swamp  ought  to  be  drained  by  the  state  or  under  its  direction 
by  the  district  for  the  purpose  of  diminishing  malaria  because 
the  right  to  life  requires  it,  any  more  than  physicians  and 
medicine  ought  to  be  supplied  by  the  state  because  the  right 
to  life  requires  it.  The  right  to  life  is  of  another  sort  ;  and  it 
does  not  say  to  the  state  "  thou  shalt  keep  this  or  that  man 
from  sickness  such  as  the  soil  or  climate  may  bring  upon  him," 
any  more  than  the  rights  of  property  say  "  thou  shalt  keep 
this  or  that  man  from  poverty  occasioned  by  his  neighbor's 
superior  skill." 

This  return  to  our  discussion  on  such  a  point  may  be  tedi- 
ous, but  we  plead  an  excuse  for  it  for  two  reasons.  First,  it 
is  dangerous  to  stretch  the  limits  of  the  state's  necessary  ac- 
tion, which  would  tend  to  make  individuals  and  associations 
retire  from  certain  fields  where  they  are  at  home  ;  and  the 
second  is  to  show  the  impossibility  of  drawing  a  clear  line  be- 
tween the  grounds  on  which  particular  regulations  for  the 
public  welfare  may  be  made.  The  jural  relations  of  man  and 
his  other  interests  may  concur,  in  one  case  the  former  plead- 
ing aloud  and  the  other  acting  as  assistants,  in  another  case 
the  general  interests  of  a  community  standing  foremost  and 
rights  seconding  them  from  behind. 

In  considering  these  rights  separately,  we  remark  first,  in 
some  kinds  of  aid   regard  to  iiidust '  ry ,  that  capital  needs  little  more 
considered.  aiJ  ^  that  furnished  by  the  free  use  of  courts 

and  the  freedom  to  change  its  form  and  place  at  will  without 
interference  on  the  part  of  the  state.  Prohibitory  and  restrict- 
ive laws  arc  its  great  enemies  ;  its  principal  injuries  come  from 
state  care  and  from  taxation,  which  will  be  spoken  of  else- 
where, and  from  the  fetters  placed  upon  it  by  unwise  and 
unjust  state  policy  cherishing  one  industry  at  the  expense 
of  the  rest.  Positive  care  on  the  part  of  the  state  in  facili- 
tating   intercourse,  whenever  this   requires  public  action,   is 


SPHERE  AND  ENDS  OE  STATE.  22  [ 

generally  for  the  good  of  all  the  interests  of  a  people  alike 
and  not  peculiar  to  those  of  industry.  Whether  this  care 
ought  to  extend  beyond  improving  harbors,  and  making 
treaties  of  commerce  with  foreign  states  ;  whether  it  may 
build  ports  or  roads  or  canals,  or,  if  not,  may  delegate  the 
power  to  do  this  to  private  corporations, — which,  in  principle, 
is  the  same  with  direct  action — will  depend  on  the  decision 
how  this  can  best  be  done,  and  how,  if  the  state  undertakes 
such  works,  this  will  affect  its  power  and  influence,  as  weighed 
against  the  freedom  of  the  people.  In  general  it  may  be 
said  that  public  works,  either  necessary  for  carrying  on  the 
government  or  for  general  defence,  or,  if  of  immediate  advan- 
tage to  industry,  yet  surpassing  the  powers  of  private  persons 
single  or  combined,  may  be  undertaken  by  the  state.  The 
last  only  of  these  classes  of  works  has  any  direct  connection 
with  the  protection  or  encouragement  of  public  industry. 
Prohibitory  legislation  in  regard  to  capital,  especially  as  it 
respects  the  maximum  of  capital  or  of  land  which  an  individ- 
ual can  be  allowed  to  own,  is  a  political  measure,  and  deserves 
to  be  considered  by  itself.  The  interests  of  the  laboring  class 
need  the  state's  protection,  in  order  that  in  a  strife  with 
capital  it  may  not  be  oppressed.  But  no  class  of  persons  has 
any  right  to  the  care  or  aid  of  the  state  more  than  another  ; 
the  laborer  cannot  claim  it  at  the  expense  of  the  other  portions 
of  society  ;  he  ought  not  to  demand  it,  even  in  the  shape  of 
work,  any  more  than  the  shopkeeper  to  demand  customers  ; 
but  the  aid  of  the  state  (apart  from  the  duty  of  humanity), 
must  mainly  consist  in  preventing  him  from  suffering  by  une- 
qual contracts  with  his  employers,  and  in  raising  his  condition 
so  that  he  can  know  where  to  get  work  at  a  better  reward. 
All  this,  however,  be  it  observed  in  passing,  is  to  be  set  to  the 
account  of  the  general  interests  of  the  state  and  of  a  humane 
spirit  rather  than  to  the  defence  of  rights.  But  the  oppression 
of  children,  by  an  undue  amount  of  daily  labor,  not  admitting 
recreation  and  training  in  knowledge,  is  what  the  state  ought 
to  prevent,  as  being  the  guardian  of  children's  rights  even 
against  its  parents. 


222  POLITICAL   SCIENCE. 

In  other  particulars  the  assistance  of  the  state  will  be  of 
the  greatest  use,  if  not  of  prime  necessity.  We  give  as  an 
example  what  it  can  do  in  aid  of  the  operations  of  exchange. 
Communities  have  been  led  by  their  experience  of  the  evils 
attending  the  operations  of  simple  barter  to  search  for  some 
substance  which  by  its  inherent  qualities  can  serve  as  a  meas- 
ure of  value  and  a  medium  of  exchange.  Such  a  substance 
states  have  had  no  agency  in  discovering,  and  they  certainly 
have  no  right  or  power  to  assign  these  important  functions 
to  any  thing  which  they  may  please  to  select.  But  when 
a  substance,  like  gold  or  silver,  is  by  common  consent  ad- 
mitted to  have  uses  as  a  measure  of  values  and  a  means  of 
exchange,  the  state  can  add  to  its  usefulness  by  certifying  its 
purity  upon  its  face,  by  giving  to  it  convenient  and  propor- 
tionate forms,  and  by  making  it  to  pass  in  payments  of  all 
debts  where  some  other  substance  was  not  chosen  for  this 
purpose  by  the  contracting  parties.  Beyond  this  a  state 
cannot  go  without  injustice  ;  so  far  it  must  go,  or  traffic  and 
with  it  all  industry  will  languish. 

Omitting  to  say  anything  further  of  ways  of  locomotion, 
we  pass  on  to  sanitary  laws,  which  until  modern  times  have 
not,  we  believe,  had  a  large  share  of  legislation  given  to 
them.  What  the  Greeks  did,  in  the  way  of  training  the 
body  by  public  provision  for  gymnastic  exercises,  was  dictated 
not  so  much  by  care  for  health,  as  by  the  desire  of  forming 
free  citizens  into  strong  and  beautiful  men,  fit  for  war  and 
for  a  harmonious  dignity  of  life.  The  modern  health  laws 
have  it  for  their  motive  to  diminish  the  amount  of  disease, 
especially  of  the  malarious  kind,  to  prevent  the  introduction 
of  diseases  into  a  country  and  to  give  such  instructions  to 
the  people,  especially  to  the  poor,  that  they  can  guard  against 
the  avenues  of  illness.  Sanitary  laws  extend  to  the  preven- 
tion of  the  spread  of  cattle-plagues  as  well  as  of  those 
which  attack  human  beings.  The  work  required  by  them  is 
chiefly  performed  where  masses  of  men  are  packed  together  ; 
in  the  country,  where  men  live  separate,  they  are  little  wanted. 
They  fall  thus  into  the  hands  of  municipal  corporations  for 


SPHERE  AND  ENDS  OF  STATE.  223 

the  most  part,  and  run  into  a  multitude  of  details.  As  such 
laws  are  for  the  benefit  of  all  alike  and  as  those  who  are  bene- 
fited can  be  made  to  pay  the  cost,  they  are  willingly  sub- 
mitted to  by  an  intelligent  people.  And  yet  the  power  to 
control  the  construction  of  tenement  houses,  for  the  purpose 
of  general  health,  is  one  of  the  most  striking  interferences 
with  an  individual's  employment  of  his  capital. 

4.  It  lies  within  the  province  of  the  state  to  provide  for  the 
The   state   may   intellectual    and    aesthetic    wants,   and    for    the 

provide   for   inward  ...  c       .  .  .     , 

or  spiritual  wants,  cultivation  of  the  moral  and  religious  nature 
of  its  citizens  or  subjects.  It  may  also  perform  the  office  of 
humanity  towards  the  poor  and  the  unfortunate. 

Here  a  wide  subject  opens  before  us  and  one  full  of  con- 
troverted points.  The  main  questions  concern  the  relations 
which  the  state  ought  to  sustain  to  morality  and  religion. 
But  even  into  the  subject  of  education  by  the  state  contro- 
versy enters.  The  principal  points  of  difficulty  will  appear 
and  be  discussed  under  the  heads  that  have  been  named. 
We  consider  first  the  state's  relation  to  religion. 

(a)  Here  and  in  what  follows  our  difficulties  arise  in  part 
cf  f ,     ,  ■    ,     from  the  nature  of  the  Christian  religion.      Be- 

Mate  s  relation  to  ° 

rellgl0n-  ing  in  its  essence  a  religion   acting  by  truth  on 

the  believing  mind,  and  by  revealed  relations  of  the  soul  to 
God  on  the  affections,  Christianity  provides  a  cultivation 
which  will  naturally  bring  the  intellectual  and  moral  disci- 
pline of  the  young  mind  under  the  care  of  Christian  teachers. 
There  has  thus  most  naturally  arisen  a  kind  of  division  of 
labor  between  the  state  and  the  Church,  the  former  taking 
care  of  "  body  and  goods  "  and  the  latter  of  mind  and  heart. 
All  higher  education  until  the  sixteenth  century  was  in  the 
hands  of  Christian  teachers,  especially  in  universities  under 
Christian  control,  and  it  seemed  to  be  necessary  to  train  up  the 
young  in  secular  learning,  morality  and  religion  together. 
Thus  the  field  was  occupied,  at  the  era  when  advancing  cul- 
ture originated  or  perfected  a  great  many  sciences,  which  had 
nothing  to  do  with  religion  or  morality,  and  would  be  true  if 
there  were  no  religion  nor  morality. 


224  POLITICAL   SCIENCE. 

The  domains  of  secular  science  being  enlarged  and  its  im- 
portance increasing,  it  took  its  place  by  the  side  of,  and  not 
in  subordination  to,  theological  science,  and  churchmen 
trained  under  the  old  discipline  were  not  fitted  for  such 
instruction.  A  second  difficulty  grows  out  of  the  almost 
necessary  difference  of  opinions  in  regard  to  doctrine  and 
worship  which  will  arise  when  thought  is  untrammelled.  The 
theory  of  religious  truth  is  not  filled  out  in  the  Scriptures, 
and  men  can  hardly  avoid  seeking  to  supply  what  is  wanting, 
until  a  system,  partly  human,  claims  from  its  connection  with 
the  revelation  to  have  an  almost  divine  original.  Free  minds 
protest  against  this  and  give  occasion  to  dissensions,  and  the 
dominant  party  seeks  the  aid  of  the  state  against  minor  sects, 
if  any  alliance  between  the  state  and  the  church  is  allowed 
to  exist.  Or,  again,  worship  and  discipline  acquire  a  pecu- 
liar importance,  as  soon  as  outward  unity  among  Christians 
is  felt  to  be  necessary  ;  and  hence  the  church  claims  the  rec- 
ognition of  the  state  for  its  order  and  rites  against  all  disturb- 
ing innovations.  The  state  may  become,  in  the  interest  of 
the  church,  the  oppressor  of  the  individual,  by  taking  away 
his  rights  of  worship  and  of  free  expression  of  opinion  on 
one  great  class  of  subjects.  It  may  go  further,  and  even 
require  of  him  religious  observances,  which  he  is  unwilling, 
or  feels  himself  in  conscience  bound,  not  to  render.  I  say 
nothing  of  other  relations  of  the  state  to  the  church,  which 
consist  chiefly  in  giving  to  it  as  to  other  associations  a  more 
or  less  unlimited  right  of  holding  property  and  other  neces- 
sary protection. 

The  same  duality  which  thus  appears  in  Christian  states,  as 
far  as  religion  is  concerned,  will  show  itself  in  relation  to 
moral  education.  The  Christian  religion  is  permeated  with 
moral  ideas,  which  reach  to  the  innermost  motives  of  man. 
It  is  natural,  therefore,  with  such  an  agent  all  ready  to  act, 
that  the  modern  state  should  in  a  great  degree  have  deserted 
the  ground  taken  by  many  antique  states,  of  forming  the 
character  of  the  young  by  its  own  institutions,  and  should 
leave  to  a  strong  power   which  it  respected  and  felt  the  need 


SPHERE  AND  ENDS  OF  STATE.  22$ 

of,  the  care  for  the  children  of  the  people,  as  far  as  they  were 
cared  for  at  all.  This  was  the  more  natural  course  for  the 
state,  as  the  church,  in  spite  of  its  mediaeval  independence, 
did  inculcate  on  the  people  and  on  the  young,  the  duty  of 
obedience  to  the  ruler  and  the  law,  as  long  as  civil  order  did 
not  clash  with  religious. 

All  this  has  been  modified  since  the  time  when  the  reforma- 
tion, the  rise  of  religious  sects,  the  spirit  of  free  thinking,  free 
emigration,  and  free  residence  of  foreigners,  have  brought  all 
sorts  of  opinions  together  in  Christian  countries,  and  since 
knowledge  has  vastly  outgrown  its  ancient  limits. 

And  yet  the  state  can  scarcely  fail  to  have  a  fixed  opinion  on 
these  three  points,  that  a  corrupt  morality  dissolves  all  the 
bonds  of  the  social  fabric,  that  a  moral  education  of  the  young  is 
the  strictly  essential  condition  of  a  stable  and  progressive  soci- 
ety, and  that  religion,  by  its  elevated  truths  and  motives,  takes 
the  leading  part  in  forming  the  character  of  a  law-abiding 
useful  citizen,  and  with  this  in  view,  ought  to  be  one  of  the 
prime  factors  in  education.  The  same  opinion  must  be  enter- 
tained now  which  controlled  the  policy,  if  not  the  polity,  of 
the  ancient  states, — that  state  order  and  existence  are  depend- 
ent on  the  agencies  just  named  ;  the  difference  in  the  two 
cases  being  that  the  relations  in  modern  states,  especially  to 
religion,  and  in  a  degree  the  doctrine  of  individual  rights,  have 
taken  another  shape. 

What,  then,  has  the  state  the  power  of  doing,  consistently 
with  its  nature  and  objects  ;  and  what  ought  it  to  do  ?  Ought 
it  to  go  as  far  as  its  legitimate  power  can  permit  ? 

i .  With  regard  to  the  state's  relations  to  religion  I  am  free 
to  avow  my  opinion  that  it  may,  without  going  out  of  its 
permitted  path,  not  only  protect  religion  in  other  ways,  but 
may  also  support  an  established  church.  At  the  same  time 
I  believe  that,  as  a  practical  question  for  the  present  in  some 
societies  and  for  the  future  probably  in  all,  men  will  come  to 
the  opinion  that  the  institutions  of  religion  can  be  best  sus- 
tained by  combinations  of  private  persons  ;  that  the  state 
must  protect  whatever  is  of  an  outward  nature  in  those  institu- 
*5 


226  POLITICAL   SCIENCE. 

tions,  such  as  church  buildings,  and  various  endowments, 
together  with  the  right  of  fixing  a  limit  to  the  amount  of 
ecclesiastical  property  in  order  to  secure  its  own  free  action 
and  to  prevent  an  imperium  in  imperio ;  and  that  further 
than  this  it  ought  not  to  go. 

On  the  other  hand  it  is  not  theoretically  wrong  for  the  state 
to  do  what  the  Jewish  theocracy  did,  or  what  all  Christian 
states  have  done  until  comparatively  modern  times,  namely, 
to  provide  for  the  religious  wants  of  the  people  by  some  kind 
of  legislation.  But  this  is  practicable  only  where  a  people  is 
all  of  one  way  of  thinking  on  religious  subjects.  When  dis- 
sent and  infidelity  arise  they  must  be  felt  to  have  rights,  the 
right  of  free  opinion,  free  association,  and  free  worship.  The 
positive  statutes  which  have  appeared  in  many  codes  of  laws, 
requiring  attendance  at  church  by  a  fine,  demanding  of  all 
grown  up  persons  to  partake  of  the  sacrament  at  least  once  a 
year, — as  was  the  usage  some  time  since  in  the  Ecclesiastical 
State, — or  of  all  members  of  parliament  to  do  the  same — as 
was  long  the  law  in  England — these  are  contrary  to  the  free 
exercise  of  private  rights  ;  and  a  state  church  might  exist  and 
flourish  with  no  such  legislation  to  support  it,  with  allowing 
perfect  freedom,  opening  the  doors  for  the  poor  to  worship, 
and  letting  all  worship  where  they  will,  or  not  at  all. 

The  practical  side  of  the  relation  of  the  church  to  the  state, 
the  opinions  of  some  eminent  writers,  and  the  usages  of  a 
number  of  states  in  different  ages  and  under  different  relig- 
ions I  propose  to  consider  in  the  third  part  of  this  work. 

§79- 
2.  The  prominent    motive  in  those    ancient   states  which 
stated  relations  to   made  a  point  of  educating  the  children  of  free 
citizens  was  to  train  up  a  body  of  freemen,  who 
by  their  strength  and  skill  could  be  serviceable  to  the  state, 
and  by  their  intelligence  could  be  fit  for  the  higher  work  of 
the  citizen  in  official  posts  or  the  public  councils.     In  aiming 
at  this  a  certain  idea  of  what  was  becoming  for  the  free  citi- 
zen— the   cultivation    of  a  manly,    liberal,    harmonious    and 


SPHERE   AND    ENDS   OF   STATE.  227 

dignified  character — the  opposite  of  the  spirit  of  the  slave — 
was  the  guide  and  standard.  The  best  results  of  this  system, 
founded  as  it  was,  not  so  much  on  learning  as  on  aesthetical 
and  bodily  development,  are  worthy  of  high  admiration. 
Athens  could  not  reach  this  point  of  training  on  account  of 
its  political  constitution,  and  as  for  education  in  letters,  it 
was  little  cared  for  by  that  democratic  state,  as  a  public  in- 
terest. Nowhere  was  there,  so  far  as  we  know,  public  pro- 
vision for  the  education  of  serfs  or  of  slaves,  which  would 
have  violated  the  imagined  rights  of  property  and  endangered 
the  stability  of  the  republics  ;  the  ignorance  of  the  slave's 
mind  being  necessary  for  the  servitude  of  his  body. 

In  mediaeval  societies,  for  reasons  already  given  and  be- 
cause a  large  part  of  the  community  for  some  time  were  serfs 
or  slaves,  as  well  as  because  the  office  of  instruction  fell  to 
the  church,  the  state  concerned  itself  but  little  for  the  train- 
ing of  the  young.  But  the  more  modern  opinion  attaches 
to  education  the  greatest  importance,  and  in  a  large  part  of 
Christendom  this  opinion  is  carried  out  in  a  system  of  pri- 
mary instruction,  and  special  schools,  and  in  what  is  called  the 
University.  That  the  state  has  a  right,  and  indeed,  is  bound 
to  do  this,  is  shown  first  by  the  vast  importance  of  a  right 
training  of  children  on  the  state's  account  and  for  all  general 
interests,  and  by  the  evils  coming  from  an  ignorant  lower 
class  in  all,  especially  in  free,  states.  The  laboring  class,  for 
instance,  will  have  no  mobility,  will  be  in  the  power  of  the 
employer,  will  have  no  hope  of  bettering  its  condition  of  life  by 
change  of  place,  will  be  given  to  low  pleasures.  Crime  and 
ignorance  go  together,  and  the  prospect  for  the  children  of 
such  a  class  is  dark  indeed.  For  the  industry,  morals,  loy- 
alty and  quiet  of  the  class,  for  the  safety  of  all  classes,  some 
kind  of  education  is  necessary. 

Further,  as  has  been  said  before,  since  the  state  is  the  pro- 
tector of  all  rights  and  the  parents  may  refuse  to  give  to 
their  children  all  the  advantages  that  are  within  their  power, 
there  seems  to  be  no  injustice  in  compulsory  education — that 
is,    in   requiring    the    parents  to    provide    an    education    for 


22S  POLITICAL   SCIENCE. 

their  children  which  is  regarded  as  sufficient  for  the  purposes 
of  life,  or  in  making  such  provision  in  their  place.  And  all 
ought  to  be  excluded  from  the  right  of  suffrage  who  have 
no  elementary  knowledge  of  the  most  necessary  branches. 

How  far  the  state,  in  the  circumstances  of  modern  society, 
ought  to  provide  instruction  for  the  people,  and  especially 
whether  it  should  offer  to  them  the  highest  learning,  are 
subjects  where  there  may  be  much  to  say  on  both  sides,  and 
where  practical  considerations  must  rule  our  decision.  Tech- 
nological instruction,  agricultural  schools,  seem  to  fall  to  the 
state  for  their  foundation  and  encouragement,  owing  to  their 
special  nature  and  to  the  improbability  that  they  who  would  be 
most  benefited  by  them  would  endow  them,  or  send  to  them 
their  children  at  their  own  cost. 

The  aesthetical  cultivation  of  a  people  depends  so  much 
on  the  joint  action  of  many  and  is  so  costly,  that  in  few  states 
hitherto  has  there  been  ability  on  the  part  of  private  persons 
to  make  collections  in  the  arts,  or  to  pay  first-rate  teachers  or 
collectors.  It  seems  that  this  part  of  human  training  must 
be  dependent  in  a  measure  on  the  care  of  the  state.  It 
may  be  said  of  all  public  collections,  such  as  libraries,  muse- 
ums, botanical  and  zoological  gardens,  as  well  as  of  all  en- 
couragements to  individuals  to  make  discoveries  useful  to 
men,  that  the  community  must  look  chiefly  to  the  state  to 
take  the  lead  in  these  directions. 

Whatever  the  state  may  do,  the  individual  or  the  associa- 
tion must  be  permitted  to  do.  The  state  ought  to  have  no 
monopoly  here.  The  liberty  of  teaching  is  one  form  of  free- 
dom of  speech  and  thought ;  and  with  the  exception  of  the 
lower  and  the  more  technical  branches  and  of  aesthetical  in- 
struction, the  state  ought  rather  to  supplement  the  efforts  of 
individuals  than  to  take  the  lead  at  an  advanced  stage  of 
society. 

But  wherever  the  young  are  trained, a  difficulty  arises  with 
regard  to  a  conciliation  of  the  claims  of  the  state  and  of  re- 
ligion. This  difficulty,  due  to  causes  already  mentioned!  is 
met  in  the  case  of  higher  learning  by  the  state's  providing  re- 


SPHERE   AND   ENDS    OF   STATE.  229 

Hgious  instruction,  and  leaving  it  to  parents  whether  their 
children  shall  receive  it  or  not,  and  also  by  higher  seminaries 
founded  by  religious  bodies  with  the  state's  consent,  and 
placed  under  a  corporation  over  which  the  state  has  no  direct 
control.  But  in  a  country  where  there  is  an  established 
church,  and  by  its  side  other  considerable  denominations,  ori 
where  there  are  numerous  and  perhaps  hostile  denominations 
all  equal  before  the  law,  how  are  the  claims  of  religious  equal- 
ity and  the  needs  of  instruction  in  religion  and  morality  to  be 
reconciled.  On  this  point,  which,  while  we  write,  agitates 
both  England  and  the  United  States,  the  strictness  of  theory 
could  be  propitiated  to  a  considerable  extent  by  one  of  three 
methods.  Either  religion  and  morality,  so  far  as  it  is  con- 
nected with  religion,  must  be  divorced  entirely  from  public 
instruction  ;  or  the  denominations  that  claim  the  right  of  do- 
ing their  own  religious  instruction  must  be  allowed  time  in  the 
week  to  inculcate  religious  precepts,  after  their  fashion,  on  the 
young  of  their  folds  in  the  schools  ;  or  there  must  be  denomina- 
tional schools  supported  by  the  state  according  to  the  percent- 
age of  population  of  each  body,  under  the  state's  supervision. 
This  is  not  the  place  to  discuss  the  practical  side  of  this  im- 
portant matter.  I  only  add,  therefore,  the  remark,  that  the 
gravity  of  the  subject  consists  in  the  number  of  children  who 
have  no  moral  or  religious  training  at  home  and  are  not 
brought  under  the  influence  of  any  church  or  moral  influence. 
Here  is  material  for  future  enemies  of  political  order  and  in- 
vaders of  rights.  And  it  is  probable  that  this  class,  if  left  to 
itself,  will  not  by  any  means  diminish,  unless  a  higher  benev- 
olence than  has  yet  appeared  should  do  by  private  effort 
what  the  state  could  best  do  by  a  general  system.  Taking 
this  in  view,  I  would  prefer  the  two  last  mentioned  of  these 
methods  ;  but  the  third  is  entirely  out  of  the  question,  at  least 
in  this  country.  And  I  see  no  plan  possible — religious  in- 
struction being  out  of  the  question — but  that  of  a  system  of 
moral  teaching  such  as  all  the  sects  can  agree  upon,  and 
which,  by  means  of  appropriate  books  and  in  other  ways, 
teachers  shall  be  authorized  to  follow.     Even  then  a  theoreti- 


230  POLITICAL   SCIENCE. 

cal  objection  might  be  made  by  certain  infinitesimal  parts  of 
society.  Is  not  the  atheist  wronged  by  a  system  of  morals 
resting  on  the  doctrine  of  a  holy  and  merciful  God  ?  But 
there  must  be  some  ultimate  truth  admitted,  and  de  minimis 
noil  curat  lex.  Public  institutions  always  act  unequally.  A 
school  is  too  far  off  for  some  ;  if  history  is  studied,  it  must  tell 
a  story  of  the  reformation  with  some  degree  of  bias  ;  a  Quaker 
objects  to  paying  a  war-tax  ;  a  bachelor  has  no  direct  inter- 
est in  education.  If  the  atheist  objects  to  a  God  becoming 
known  to  children  in  the  school,  let  him  have  all  possible  in- 
dulgence, but  how  can  his  children  be  exempted  from  moral 
instruction  altogether. 

$80 
The  state's  relations  to  morals  are  in  part  more  complicated 
The  state's  reia-  and  m  Part  more  clear  than  any  it  can  sustain 
uons  to  morahty.  towards  religion  or  education.  We  have  seen 
that  obligation,  the  correlative  of  rights,  is  a  moral  conception. 
The  duties  and  obligations  of  the  citizens  towards  the  state, 
and  the  state's  duties  towards  the  citizens  are  eminently 
moral.  There  is  a  moral  element  in  all  criminal  law  and  pen- 
alty. In  the  system  of  justice  the  intention  affects  the  esti- 
mate of  crime  ;  the  moral  capacity  of  the  doer  of  an  illegal 
act  is  weighed  before  a  jury  ;  and  even  carefulness  and  the 
want  of  it,  moral  states  of  mind  for  which  few  feel  much  re- 
sponsibility, will  affect  the  amount  of  damages.  The  state 
being  thus  imbued  in  all  its  action  with  moral  ideas,  owing 
duties  also  and  obligations  to  other  like  communities,  as  private 
persons  owe  them  to  each  other,  is  necessarily  a  body  built 
on  morality,  and  is  instinctively  aware  that  immoral  lives  and 
conditions  of  the  soul  bring  with  them  disorders,  disturbances 
of  rights,  insubordination,  and  political  ruin.  For  the  sake 
of  its  own  existence,  as  well  as  from  an  instinctive  aversion  to 
evil  in  its  outbreaking  recklessness,  the  state  seeks  some  way 
of  preventing  immoralities  which  manifest  themselves  in  action. 
The  state,  however,  has  no  measure  of  immorality  except 
by  its  acting  itself  out,  and  indeed  it  is  outward  actings  that 


SPHERE  AND  ENDS  OF  STATE.  23 1 

injure  in  an  open  way  the  outward  organism  called  the  state. 
All  states  have  noticed,  and  by  penalty  tried  to  prevent,  such 
actions,  either  as  affecting  the  state's  safety,  or  as  preventing 
the  fulfilment  of  private  obligations.  Laws  against  obscenity, 
prostitution  and  pandering  to  base  pleasures,  drunkenness, 
wasting  of  property  in  debauchery,  vagrancy,  and  many  other 
wrong- doings,  may  be  found  on  the  statute  books  of  nations 
in  many  respects  very  unlike.  If,  then,  the  question  is  decided 
by  considerations  drawn  from  the  power  of  the  state  to 
say  what  are  criminal  acts,  or  from  the  importance  of  repress- 
ing them,  or  from  the  common  sentiment  embodied  in  law, 
legislation  will  be  justified  against  some  immoral  acts,  as  of- 
fences against  moral  order,  which  imperil  the  state  and  the 
well-being  of  society.  The  offence  is  an  act ;  it  can  be  de- 
fined, as  clearly  as  invasions  of  private  rights  can,  or  as  trea- 
son and  other  crimes  directed  against  the  state's  existence. 

But  here  arises  a  difficulty.  If  you  make  the  state  a  legis- 
lator on  moral  subjects,  where  can  you  stop  ?  If  you  prohi- 
bit breaches  of  morality,  must  you  not  go  to  the  bottom  of  the 
catalogue  with  your  laws  ?  If  you  prohibit,  may  you  not  in 
some  instances  require  positive  performances  ?  If  you  pro- 
hibit that  which  indirectly  hurts  the  state,  how  near  or  re- 
mote must  that  indirection  be — where  can  you  find  the  limit 
on  one  side  of  which  a  state  may  act,  but  on  the  other  side 
must  abstain  from  action  ?  And  when  you  have  gone  so  far, 
have  you  not  reduced  the  state  to  an  order  like  that  of  the 
family,  and  left  no  sphere  in  which  individual  choice  can 
move  ? 

An  answer  to  these  inquiries  runs  into  the  consideration 
of  what  are  the  practical  and  feasible  subject-matters  of 
legislation  on  moral  subjects  :  and  here  again  the  condition 
of  states,  their  size,  the  opinions  of  the  people  as  coinciding 
with  or  opposing  strict  law,  and — we  add — the  means  on  hand 
outside  of  law,  whether  furnished  by  religion  or  the  training 
of  the  young  for  preventing  evil,  must  be  taken  into  account. 
This  is  not  the  place  to  look  at  the  conditions  of  society 
which  may  call  for  or  make  impolitic  the  action  of  law.     We 


232  POLITICAL   SCIENCE. 

only  add   in   the   briefest  words  one  or  two   qualifying  re- 
marks : 

1.  Moral  legislation  relates  only  to  the  prevention,  sup- 
pression and  punishment  of  wrong  acts. 

2.  These  acts  must  also  be  regarded  as  hurtful  to  the 
general  welfare. 

3.  They  must  be  chiefly  public  acts.  Immorality  keeping 
itself  secret  is  comparatively  weak  in  its  bad  influence. 

4.  They  must  be,  in  great  measure,  acts  which  extend  in 
their  direct  injury  beyond  the  individual.  Yet  here,  perhaps, 
we  may  hesitate  to  draw  a  line.  Vices  that  involve  a  family 
in  ruin,  like  drunkenness,  may  be  punishable  in  a  man  who 
has  a  family  ;  shall  we  take  no  notice  of  similar  vices  in  an 
unmarried  man  ?  But,  on  the  other  side,  if  we  punish  prac- 
tices which  are  thought  to  hurt  the  state,  we  may  go  far  be- 
yond the  rightful  limits  of  legislation.  We  have  to  look  to 
the  interests  of  free  individual  action  as  well  as  to  the  good 
of  the  community.  It  is  better  to  allow  men  to  do  a  great 
deal  of  evil  than  to  restrict  individual  liberty  to  such  a  degree 
that  government  and  law  will  be  looked  on  as  enemies.  The 
evil,  if  it  be  plainly  such  and  yet  does  not  obviously  or 
seriously  threaten  the  existence  or  the  well-being  of  society, 
must  be  endured  for  the  sake  of  freedom,  and  be  left  to 
society  and  opinion  to  correct. 

§81. 
An  object  which  all  modern  states  have  kept  in  view  has 
The  state's  reia-  Deen  to  provide  for  the  wants  of  the  poor  and 
tions  to  the  poor.  helpless.  The  causes  of  this  unfortunate  con- 
dition will  of  course  greatly  vary  ;  some  are  poor  by  their 
own  vices  ;  others  through  their  parents'  fault  ;  others  are 
incapacitated  for  work  by  disease  or  bodily  deficiencies ; 
others  by  hard  times  and  lack  of  employment.  Some  can 
be  helped  by  family  friends  ;  others  have  no  such  source  to 
look  to.  If  the  vicious  poor  are  helped,  they  must  not  be 
put  on  the  same  level  with  the  unfortunate  poor,  and  it  must 
be   understood,  in   furnishing  assistance,  that  the   state  does 


SPHERE  AND   ENDS   OF   STATE.  233 

not  take  upon  itself  the  burden  that  near  kinsmen  are  able 
to  bear. 

Now,  that  in  theory  the  state  may  provide  for  the  wants  of 
the  poor  may  be  argued  from  that  common  humanity  which 
men  chiefly  cultivate  in  a  community  where  social  life  is  well 
ordered,  and  where  men  feel  that  they  are  not  isolated  but 
members  one  of  another.  But,  independently  of  this  feeling 
which  grows  with  civilization,  the  welfare  of  the  state  demands 
that  a  class,  which  may  be  tempted  to  crime  by  wants,  and 
which  ignorance  renders  comparatively  useless  to  the  state, 
be  kept  down  as  much  as  possible.  The  chief  problem  is  to 
prevent  the  vices  and  indigence  of  parents  from  reducing 
the  children  to  degradation  ;  and  hence  the  state's  rights  to 
provide  education,  moral  and  religious  instruction,  and  such 
a  support  as  will  save  the  poor  from  disease,  all  concur  on 
their  behalf.  The  state  also,  in  some  instances,  is  the  only 
agent  which  is  adequate  to  the  great  problem  of  poverty  as 
it  shows  itself  in  large  towns,  and  amid  the  rapid  changes  of 
demand  for  manufacturing  products.  Indeed  at  all  times 
there  are  wants  which  the  benevolent  cannot  fully  supply. 
If  the  relief  of  the  destitute  were  left  to  them  alone  it  would 
be  too  great  a  burden  for  a  minority  of  a  people  to  bear,  not 
to  say  that  multitudes  of  the  better  classes  of  the  poor  would 
not  come  within  their  knowledge. 

The  method  of  supporting  the  poor,  without  injury  to 
them  or  to  the  state,  is  a  subject  of  extreme  importance  in  a 
thickly  populated  and  a  manufacturing  country,  but  it  does 
not  concern  us  here.  I  remark  on  this  point  only  that  the 
able-bodied  poor,  if  aided,  ought  to  be  furnished  with  sup- 
plies inferior  to  those  which  their  own  labor  could  procure  ; 
that  the  money  for  their  assistance  ought  to  be  raised  by  the 
votes  of  taxpayers  and  of  taxpayers  only  ;  that  public  charity 
ought  to  be  so  managed  as  not  to  extinguish  private  charity, 
and  if  possible,  should  concur  with  it  on  some  wise  plan  ; 
and  that  it  would  be  well  if  private  charity  could  take  the 
lead,  and  public  be  regarded  as  supplemental. 

Such  are  the  principal  departments  of  action  for  the  welfare 


234  POLITICAL   SCIENCE. 

of  the  community,  in  which  the  state  and  its  members  may 
concurrently  or  separately  work.  For  the  state  to  restrict  in- 
dividual action  in  such  cases  is  to  deprive  the  citizens  of  their 
just  power.  On  the  other  hand,  if  the  constitution  takes 
away  from  the  state  its  power  to  have  a  special  action  of  its 
own,  or  to  delegate  this  to  municipalities  or  districts,  it  may 
put  the  most  serious  obstructions  in  the  way  of  the  general 
welfare.  The  first  of  these  two  evils  is,  in  advanced  society, 
by  far  the  greatest.  According  to  the  true  theory  of  the  state 
the  individual  fulfils  his  end  best,  when  his  power  of  action, 
consistently  with  the  free  action  of  his  equals  and  with  that  of 
the  state  within  its  sphere,  is  most  uncontrolled.  If  the  indi- 
vidual leaves  everything  to  the  government,  if  he  thinks  that 
the  end  of  government  is  to  support  him,  to  point  out  to  him 
ways  of  industry,  to  lead  the  way  in  every  enterprise,  he  re- 
mains a  dependent,  undeveloped  citizen  ;  he  is  not  a  freeman 
in  his  spirit.  National  character  differs  much  in  these  respects. 
M.  Dupont-White  *  calls  attention  to  the  contrast  between 
France  and  England,  in  the  first  of  which  countries  the  gov- 
ernment initiates  everything,  while  in  the  other  the  forward 
movements  in  all  enterprises  proceed  from  single  persons  or 
associations.  The  first  method  may  have  some  advantages 
in  regard  to  despatch  and  concentration  ;  the  other  is  vastly 
preferable  in  educating  and  strengthening  individual  character. 
It  is  of  use  also  in  preventing  encroachments  of  executive 
power. 

§82. 
The  state  acts  by  authority,  that  is,  by  law  and  constitution, 
Means  for  carry-  but  it  is  essential  that  it  should    have  might, 

ing  out   the   state's  .  . 

ends.  which  consists  of  armed  men,  and  the  means  to 

reward  services  performed  for  the  common  welfare.  Every 
citizen,  according  to  his  strength  of  body  and  skill,  is  bound 
to  defend  the  territory  and  political  body  when  attacked. 
There  is  no  reason  why  one  should  be  exempt  from  this  duty 
more  than  another;  it  seems  to  be  fairly  inferred  from  the 
close  connection  between  the  able-bodied  man  and  the  state, 

*  L'Individu  et  l'Etat,  p.  100,  ed.  3. 


SPHERE  AND  ENDS  OF  STATE.  235 

as  from  that  of  the  father  of  the  family  and  the  family,  that  he 
may  be  called  upon  to  preserve  the  state  from  harm.  The 
duty  and  the  promptings  of  indignation  which  lead  a  man  to 
defend  any  helpless  person  from  wrong,  are  here  enforced  by 
the  immense  importance  of  the  state's  continued  existence 
and  the  necessity  of  the  case.  There  is  evidently,  also,  a 
necessity  that  the  armed  force  should  be  at  the  disposal  of  the 
state,  under  its  control  in  some  way,  and  prepared  by  disci- 
pline to  encounter  others  who  have  been  trained  in  arms. 

The  ways  in  which  the  state  can  best  use  its  armed  force  will 
depend  on  the  condition  of  society.  In  small  states,  where 
injustice  is  to  be  repelled,  the  whole  force  of  men  of  military 
age  will  naturally  be  called  upon,  but  as  this  may  be  a  great 
hardship,  especially  for  artisans,  some  other  way  of  meeting 
adverse  power  will  be  devised.  It  may  be  that  lands  will  be 
held  on  condition  of  military  service,  or  a  part  of  the  civic 
troops  nearest  the  place  of  invasion  will  be  called  out  at  the 
expense  of  the  whole  ;  but  in  the  end  all  states  in  an  advanced 
condition  of  society  support  troops  as  a  standing  army  to 
guard  the  safety  of  the  people.  It  is  needless  to  say  that 
when  wars  become  an  important  part  of  the  business  of  the 
government,  when  the  people  have  lost  their  military  spirit 
and  prefer  that  others  shall  do  their  fighting  for  them,  the 
consequences  to  liberty  may  be  exceedingly  disastrous,  and 
that  various  checks  need  to  be  devised  to  preserve  it  unim- 
paired. The  people  who  bear  the  burden  of  war  either  by 
being  summoned  to  the  field  or  by  supporting  a  standing 
army,  and  for  whose  benefit  mainly  war  will  be  waged, 
have  a  right  to  decide  whether  there  shall  be  war,  and  what 
is  to  be  endured  in  the  shape  of  taxation  for  this  purpose. 
Thus  these  high  powers,  which  necessarily  involve  them  in 
self-denials,  and  expose  them  to  the  loss  of  their  rights,  ought 
to  be  attended  with  rights  of  theirs  against  the  government. 

The  English  word  police,  and  kindred  terms  in  other  for- 
eign   languages,  are    derived    from    the    Greek 

Police  power.  ,  .  .    .  .  .  .  c 

iToXureia  which  denotes  citizenship,  or  the   tact 
of  belonging  to  a  political  community,  then  the  constitution 


2$6  POLITICAL   SCIENCE. 

or  polity  of  that  community,  then  the  administration.  The 
old  sense  of  the  original  word  is  approached  by  writers,  espe- 
cially in  the  German  language,  who  distribute  administrative 
power  into  military,  financial,  judicial,  and  a  police.  They 
understand  by  the  police  power  that  branch  which  watches 
over  the  public  welfare,  including  in  the  term,  together  with 
other  interests,  those  of  religion,  morality,  health,  and  art. 
The  French  code  "  des  delits  et  despeines,"  of  3  Brumaire  an. 
4,  i.  e.,  of  Oct.  25,  1795,  defines  police  thus:  "  Police  is  in- 
stituted to  maintain  public  order,  the  liberty,  property,  and 
safety  of  individuals.  (Art.  16.)  Its  principal  character  is 
vigilance.  Society  considered  in  mass  is  the  object  of  its 
solicitudes.  (Art  17).  It  is  divided  into  administrative  and 
judiciary  police.  (Art.  18.)  Administrative  police  has  for  its 
object  the  maintenance  of  public  order  in  every  place,  and  in 
every  part  of  the  general  administration.  It  tends  principally 
to  prevent  delicts  (or  misdemeanors).  (Art.  19.)  Judiciary 
police  searches  out  delicts  which  the  administration  has  not 
been  able  to  prevent,  collects  the  proofs  and  hands  over  the 
authors  to  be  punished."   (Art  20.) 

This  is  a  narrow  definition  of  the  police  power,  correspond- 
ing in  some  degree  with  the  English  notion.  In  Maurice 
Block's  dictionnaire  de  1'administration  Francaise,  the  police 
is  made  to  be  that  part  of  the  public  power  which  is  charged 
with  protecting  persons  and  things  against  all  attacks,  against 
all  the  evils  that  human  prudence  can  prevent,  or  at  least  can 
diminish  in  their  effects.  To  maintain  public  order,  to  pro- 
tect individual  liberty  and  property,  to  watch  over  morals,  to 
secure  public  health — such  are  the  principal  objects  confided 
to  the  police.  Then  follow  subordinate  departments  of  its 
agency,  which  relate  to  almost  all  the  interests  of  men. 

The  German  writers  differ  in  regard  to  one  important  point, 
to  the  question  where  to  class  what  may  be  called  preventive 
police.  Von  Mohl  separates  this  from  the  police  power,  as 
he  understands  those  terms,  and  puts  it  under  the  head  of 
justice  proper.  "  Now  preventive  justice  denotes  that  agency 
of  the  state  which  prevents  infractions  of  the  rights  of  indi- 


SPHERE  AND  ENDS  OF  STATE.  237 

victuals,  or,  it  may  be,  of  the  state.  A  watchman  or  police 
officer  who  prevents  theft,  burglary,  or  arson,  or  makes  the 
streets  safe  by  night,  is  thus  a  minister  of  justice  ;  and  the 
very  men  who,  in  our  English  parlance,  are  called  the  police, 
'  would  be  denied  by  this  very  eminent  writer  to  have  any- 
thing to  do  with  the  police  function  of  government.  For  this 
he  is  blamed  by  Stahl,  and,  as  I  think,  with  reason,  on  the 
ground  that  justice  implies  injury  and  reparation.  If  anything 
can  be  called  an  office  of  police,  as  it  seems  to  me,  prevention 
of  injuries  to  individuals  deserves  the  name."  * 

But  whatever  terms  are  used  in  relation  to  the  departments 
of  administration,  we  have  a  right  to  say  : 

1.  "  That  if  there  were  such  a  department  of  the  state  as 
that  of  general  welfare  or  of  police  in  the  larger  sense  of  that 
word,  it  would  group  together  forms  of  state  agency  of  a 
very  miscellaneous  character,"  as  the  care  of  education,  pub- 
lic roads  and  health  ;  "  and  for  this  reason  would  be  of  little 
value  in  the  science  and  practice  of  government."  In  the 
different  modern  systems  of  administration  different  classifi- 
cations are  adopted.  Thus  the  postal  system  often  stands  by 
itself;  so  does  the  care  of  education  ;  or  education  and  reli- 
gion constitute  together  a  department,  and  so  on.  In  the 
English  and  American  system  much  is  done  through  com- 
missions of  different  kinds  which  are  independent  of  one 
another.  Perhaps  among  us  in  the  United  States  especially, 
the  system  of  public  officials  has  not  been  reduced  to  suffi- 
cient order  and  is  not  placed  under  sufficient  supervision. 
But  at  all  events  the  rule  of  dividing  departments  according 
to  the  work  demanded  seems  to  be  a  wise  one. 

2.  But  there  is  a  class  of  officers  of  an  humble  kind  and 
unhappily  too  little  esteemed, f  who  have  two  offices  and  may 

*  From  a  paper  entitled  the  Nature  and  Sphere  of  Police  Power,  by 
the  author  of  this  work,  in  the  Journal  of  the  American  Association 
of  Social  Science,  No.  1 11,  for  1871. 

f  Comp.  Bluntschli,  Staatsrecht,  ii.,  175,  ed.  of  1857,  for  some 
remarks  on  this  want  of  respectability  and  of  dislike  to  a  most  useful 
class. 


238  POLITICAL   SCIENCE. 

appear  in  service  on  different  occasions.  One  of  their  offices 
is  that  of  prevention, — to  guard  society  against  disorder  and 
crime,  both  secret  and  violent.  It  is  true  that  every  good 
institution  of  society  prevents  some  evil,  as  a  system  of 
schools  prevents  ignorance  and  crime,  health-laws  prevent 
diseases,  weighers  and  gaugers — who,  however,  themselves 
perhaps  may  be  called  a  part  of  the  police  of  society — pre- 
vent certain  frauds.  But  this  is  chiefly  an  indirect  result, 
whereas  a  set  of  officers,  according  to  our  English  usage 
called  policemen,  prevent  disorder  and  crime  by  direct  agency, 
either  by  the  fear  of  their  interference,  or  by  their  presence 
when  disorder  has  begun.  The  safety,  quiet  and  order  of 
the  night,  the  protection  of  individuals  and  families  against 
crimes  of  single  persons  or  of  gangs,  the  security  against 
fire,  and  other  similar  agencies,  are  put  into  their  hands. 
They  have  the  nearest  resemblance  to  soldiers,  except  that 
they  may  act  and  generally  act  apart.  They  use  force,  have 
the  power  of  arrest,  and  a  certain  degree  of  organization 
resembling  that  of  an  army. 

3.  As  this  body  of  men  becomes  acquainted,  in  the  course 
of  official  duties,  with  knaves  and  thieves  and  the  lurking- 
places  of  evil-doers,  they  are  best  fitted  also  to  ferret  out 
crimes.  Thus  the  detective  duties  of  the  police  grow  out  of 
their  preventive. 

4.  And  as  the  detective  police  is  auxiliary  to  the  depart- 
ment of  justice,  so  also  a  police  has,  in  general,  an  auxiliary 
power,  which  can  be  made  to  work  in  the  service  of  other 
branches  of  administration.  It  is  auxiliary,  for  instance,  to 
public  authority  when  sedition  has  past  the  line  of  pre- 
vention, by  its  strength  of  body  and  power  of  arrest,  or  when 
arson  or  negligence  has  set  houses  on  fire,  in  putting  it  out. 
Indeed  it  may  aid  departments  of  public  service  alike  by 
preventing  and  by  detecting.  Thus  the  treasury  has  its  police 
who  in  revenue-cutters  prevent  smuggling,  or,  as  detectives, 
discover  the  counterfeiters  of  government  paper  or  the  frauds 
of  distillers.  This  auxiliary  power  after  crimes  are  committed 
is,  however,  only  an  occasional  one.      "  If  it  prevents  mis- 


SPHERE   AND    ENDS   OF   STATE.  239 

doing,  so  much  the  better  ;  if  not,  its  action  in  getting  at 
misdoers  is  like  the  action  of  soldiers  in  war,  with  whom 
days  of  battle  are  exceptions.  Police  officers,  when  aiding  a 
department,  do  not  properly  belong  to  it,  but  are  a  subordi- 
nate class." 

All  civilized  states,  especially  city-states,  will  have  some 
kind  of  agents  of  public  order.  The  police  of  Athens  was 
but  little  developed,  yet  here  we  find  officers  having  the  over- 
sight of  buildings  (the  astynomi)  ;  others  who  prevented 
cheating  in  the  market  and  in  trade  (the  agoranomi)  ;  others 
who  prevented  forestalling  of  corn  (the  sitopJiylaces),  etc. 
The  Scythians,  or  bowmen,  a  band  of  public  slaves,  served 
as  a  kind  of  gens  d' amies ;  they  were  at  hand  to  aid  the 
presidents  of  the  assembly  on  the  day  of  meeting.  At  Rome 
the  police  system  was  more  complete.  The  remarkable 
power  of  the  censors  to  search  into  the  private  life  of  citizens, 
on  the  ground  that  good  thrift  and  morals  were  of  benefit, 
and  the  opposites  of  injury  to  the  community — that  power 
which  made  those  officers,  as  Dionysius  says,  inspectors  and 
watchmen  of  everything  that  took  place  in  houses  even  to 
the  bed-chamber,  was  an  appendage  to  their  original,  chiefly 
financial,  functions.*  Its  caricature  appears  in  the  anxious 
vigilance  of  the  police  in  some  European  countries  demanding 
minute  reports  from  travellers  who  stay  any  time  in  a  place, 
as  if  a  stranger  were  a  suspected  enemy.  The  sediles  of 
Rome  also,  as  police  magistrates,  had  the  care  of  markets, 
buildings,  ways  and  games  ;  but  other  officers  were  found 
necessary  to  assist  the  superior  magistrates  in  parts  of  their 
work.  Such  were  the  curators  of  the  ways,  and  the  firemen, 
appointed  in  the  year  of  Rome  568  to  watch  against  fires. 
In  the  time  of  Augustus,  the  city  guards  (vigiles),  divided 
into  seven  cohorts  and  under  a  prefect,  protected  the  city 
against  fires  and  crimes  by  night.  Among  the  Franks  and 
Anglo-Saxons  a  police  force  existed  in  the  hundreds  for  pur- 

*  Dionys.  Hal.  (ed.  Kiessling)  xx.,  13.  Comp.  Monimsen,  Handb. 
d.  Rom.  Alterth.  (ii.,  part  1,  p.  349).  Very  instructive  are  the  heads 
of  examinations  into  the  lives  and  morals  of  the  Romans  there  given. 


240  POLITICAL   SCIENCE. 

suing  night-thieves  ;  and  among  the  latter  the  tithings  were 
used  both  for  police  and  for  fiscal  purposes.  The  frith-borh 
or  frank  pledge,  a  state  institution  of  the  Anglo-Saxons,  was 
the  suretyship  and  mutual  responsibility  of  ten  associates  for 
each  other's  good  conduct,  and  no  doubt  was  efficient  in  keep- 
ing the  peace.*  The  modern  police  of  continental  Europe, 
as  an  instrument  by  which  governments  afraid  of  their  sub- 
jects suppress  open  dissatisfaction  as  much  as  possible,  is 
the  proper  engine  of  despotism.  Accordingly,  nothing  is 
more  hated  by  the  subjects  than  this  power.  The  political 
action  of  free  nations  needs  little  or  no  aid  from  a  police  in 
time  of  peace.  It  is  confined  for  its  functions  chiefly  to  the 
securing  of  the  quiet  and  order  of  civic  communities,  and  the 
detection  of  offenders. 

If  the  executive  of  a  nation  derived  its  support  from  state 
state's  right  of  tax-  lands  or  domains,  and  the  lawmakers  served 
without  fee  or  salary,  if  the  costs  in  suits  paid 
the  salaries  of  judges,  and  soldiers  defrayed  their  own  charges, 
there  would  be  no  great  perplexity  in  providing  for  the  other 
expenses  of  the  state.  But  nations  have  generally  abandoned 
such  rude  ways  of  bearing  public  burdens,  and  have  pre- 
ferred the  method  of  taking  a  part  of  the  property  of  each 
individual  or  family  for  this  purpose.  The  right  to  do  this 
has  been  explained  by  the  state's  being  the  original  owner 
of  the  soil.  In  the  feudal  monarchies  the  soil  to  some  extent, 
and  in  France  almost  altogether,  was  conceived  of  as  having 
been  the  suzerain's  original  property,  which  the  vassals  re- 
ceived on  condition  of  military  service,  and  the  pecuniary 
payments,  when  an  heir  took  the  property  or  it  was  allowed 
to  be  sold  to  a  stranger,  were  justified  on  the  same  ground. 
But  as  a  general  explanation  of  private  property  in  land  the 

*€omp.  especially  Stubbs,  Constitutional  Hist,  of  Eng.  i.,  98  and 
87,  and  Sohm,  Frank.  Reichs-  u.  Rechtsgesch.,  181  et  seq.  See  also 
Waitz,  Deutsch.  Verfassungsgesch.,  ed.  2,  Beilage  i.,  on  the  so-called 
'  Gesammtburgschaft.' 


SPHERE   AND    ENDS   OE   STATE.  241 

theory  is  not  tenable,  as  we  have  already  attempted  to  demon- 
strate. Another  explanation  of  the  right  is  that  it  denotes 
the  payment  due  for  protection.  But  protection  is  owed  by 
the  state  to  every  one,  whether  he  can  pay  taxes  or  not,  and 
would  be  just  as  much  obligatory  on  the  state,  if  it  needed 
no  taxes.  The  true  ground  is,  that  taxes  are  in  some  shape 
a  vital  necessity  ;  none  of  the  functions  of  the  state  could  go 
on  without  a  gift  from  the  citizen  of  a  part  of  the  products 
of  his  labor.  If  the  state  is  the  condition  of  all  good  and 
cannot  be  maintained  in  existence  without  taxes,  and  if  a 
very  close  tie  subsists  between  the  state  and  the  citizen  ;  his 
obligations  as  a  member  of  the  community  make  it  necessary 
for  him  to  aid  the  state  by  part  of  his  property,  just  as  much 
as  by  a  part  of  his  time  and  strength  in  war. 

The  power  of  a  government  to  tax  its  subjects  is  the  most 
liable  to  be  abused  of  all  the  powers  which  the- state  possess- 
es. The  limits  to  the  exercise  of  this  power  will  be  discussed 
in  another  place.  Here  we  remark  only  (1)  that  taxation 
must  be  as  equal  as  possible,  so  that  labor  and  capital  shall 
feel  it  alike,  and  be  unable  to  shift  it  off  upon  one  another ; 
(2)  that  it  must  not  affect  any  kind  of  production  or  branch 
of  business  by  forcing  them  to  pay  for  the  protection  of  an- 
other branch ;  and  (3)  that  it  must  not  be  within  the  power 
of  those  who  pay  no  taxes  to  levy  them  on  some  one  else. 
The  tax-payer  ought  to  give  his  consent  to  the  imposition  in 
some  constitutional  way  ;  and  the  class  which  pays  no  taxes 
should  have  no  power  by  its  representatives  to  lay  them  on 
those  who  own  taxable  property. 

$84- 
The  state's  right  of  waging  war  includes  its  obligation  to 
state's  right  to   defend  its  territory  and   individual   inhabitants, 
levy  war.  jts  j-j^  to  protect  whatever  is  its  own,  both  its 

spiritual  property  of  sovereign  existence  and  outward  prop- 
erty of  whatever  kind,  and  its  right,  imposed  on  it  by  the 
necessity  of  having  no  superior,  of  redressing  injuries  as  well 
as  of  preventing  them  in  the  future.  As  by  its  system  of 
16 


242  POLITICAL   SCIENCE. 

peaceful  justice  it  renders  a  great  part  of  self-reparation  un- 
necessary for  the  individual  citizens,  so  by  its  war-power  it 
makes  useless  in  great  measure  the  associations  of  neighbors 
or  of  districts  for  self-defence.  This  is  a  prime  necessity  of 
any  protecting  power,  but  its  means  to  fulfil  this  obligation 
must  come  from  the  money  and  muscle  of  the  inhabitants  of 
the  country.  In  theory,  then,  all  able-bodied  persons  must 
defend  the  public  interests  with  their  lives  and  their  treasures, 
so  that  in  a  sense  they  must  protect  themselves  as  well  as  the 
state,  and  the  state  turns  out  to  be  the  organizing  power 
rather  than  the  force  or  might.  It  may  happen  indeed  for 
the  convenience  of  all  that  some  are  persuaded  or  forced  to 
serve  in  war  while  others  who  stay  at  home  are  subject  to 
heavier  burdens  of  taxation  than  before.  And  as  contiguous 
nations  are  always  prone  to  quarrel  on  grounds  of  justice  or 
of  fancied  wrong,  or  to  provide  against  each  other's  injuries  by 
striking  the  first  blow,  while  governments,  to  a  great  extent, 
involve  the  people  in  war  on  their  own  account  rather  than  for 
the  public  good  ;  this  necessary  power  is  the  most  dangerous 
of  all  public  powers,  especially  when  the  carrying  on  of  war  is 
left  to  a  military  class,  and  when  war  itself  hurts  the  employ- 
ments of  peace  and  disturbs  wages.  All  which  shows  that  the 
power  of  declaring  war  ought  to  be  subject  to  some  control 
of  the  nation  on  which  the  heavy  load  rests. 


CHAPTER  V. 

LIMITS  OF   STATE  POWER. — HUMBOLDT   AND   J.    S.    MILL  ON 
THESE    LIMITS. 

§35. 

THE  powers  of  the  state  thus  spoken  of,  and  the  formidable 
state  power  needs  means  by  which  it  must  sustain  itself  at  the 
risk  of  the  citizen's  life  and  property,  may  be 
greatly  abused,  even  in  free  states.  Those  powers  in  par- 
ticular, which  we  have  distinguished  from  the  jural,  as  not 
being  absolutely  necessary  for  the  existence  of  the  state,  may 
become  most  galling  and  tyrannical  in  their  exercise  ;  no- 
where else  does  the  folly  and  the  wrong  of  governing  too 
much  appear  in  so  clear  a  light,  so  that  one  is  disposed  to 
doubt  whether  this  kind  of  powers  would  not  with  advantage 
be  resigned  by  the  state  altogether  and  be  transferred  to  in- 
dividuals or  associations.  It  is  important  therefore  to  look 
about  for  some  limits  which  shall  guide  public  opinion  on  the 
state's  exercise  of  these  powers,  and  possibly  serve  as  con- 
stitutional checks  against  governing  overmuch.  Is  not  this 
one  of  the  principal  difficulties  in  the  theory  and  practice  of 
the  state, — to  find  out  how  far  the  state  ought  to  go  in  its 
legislation,  especially  in  its  prohibitory  and  its  moral  legis- 
lation, and  how  far  it  ought  to  trust  to  the  individual  and  to 
leave  him  to  his  own  responsibility,  in  the  faith  that  thus  he 
will  become  more  loyal  and  manly  than  he  would  if  restrained 
and  watched  like  a  child  ? 

The  ancient  state  treated  its  people  as  if  they  were  one  fam- 
ily ;  directing  in  all  things,  and  leaving  nothing  which  should 
absolutely  pertain  to  the  individual  without  apprehension  of 
the  state's  interference.     He  was  born  for  the  state,  and  the 


244  POLITICAL   SCIENCE. 

state  must  determine  how  he  should  live.  The  modern  free 
state  has  recognized  the  duty  of  leaving  the  individual  undis- 
turbed, within  certain  limits,  in  the  enjoyment  of  his  liberty  ; 
but,  although  it  admits,  in  theory,  that  the  state  exists  prima- 
rily, not  for  itself,  but  for  the  individual  members,  it  has  no 
exact  definition,  in  constitution  or  law,  of  what  it  ought  in 
right  reason  to  do  for  him,  or  for  the  community  of  citizens. 
Or  else  it  prescribes  limits  which  are  not  consistent  with  the 
free  movements  of  individual  intellect  or  activity.  Or  finally, 
it  may,  although  this  is  not  common,  make  so  wide  a  path 
for  him  to  move  in,  that  there  can  scarcely  be  a  well  ordered 
and  well  protected  society. 

86. 
Several  modern  writers,  whose  opinions  are  entitled  to  great 
Limits  of  state-  respect,  have  endeavored  to  contract  the  limits 
power-  of  state-legislation  as  much  as  possible,  while 

aiming  to  secure  the  interests  of  the  state  and  the  community. 
I  mention  William  von  Humboldt,  the  great  philologist,  whose 
'  ideas  towards  an  attempt  to  define  the  limits  of  the  state's  activ- 
ity,' appeared  first  in  185 1,  and  in  his  collected  works  in  1S52 
(vols.  vii.  and  last),  although  written  long  before;*  John 
Stuart  Mill  'on  Liberty'  (1859);  and  Laboulaye,  '  l'fitat  et 
leslimites  '  (1863).  Of  these  writers  the  great  German  linguist 
and  Mr.  Mill  enter  most  at  large  into  the  subject,  both  to 
show  what  the  state  may  do  and  what  it  may  not  do.     I  can 

*  This  work,  written  by  von  Humboldt,  at  the  age  of  twenty-five, 
and  during  the  French  revolution,  was  intended  at  first  for  immediate 
publication,  but  only  small  parts  of  it  were  then  published,  and  that 
without  the  author's  knowledge,  by  his  friend  Schiller  and  by  Biester. 
Humboldt  delayed  giving  it  to  the  world  during  his  lifetime,  at  first, 
it  would  seem,  from  a  desire  to  re-cast  some  parts  of  it  ;  but  in- 
volved in  public  affairs,  he  let  it  lie  in  manuscript  until  his  death,  in 
1835.  The  printed  text  contains  a  small  lacuna  at  the  end  of  Chap- 
ter I.  Whether  Humboldt  may  not  have  changed  his  opinions  in 
the  course  of  his  life,  and  for  this  reason  have  been  disinclined  to 
give  them  to  the  world,  may  be  possible,  but  since  their  appearance 
they  have  had  considerable  influence.  Comp.  M.  Chretien's  introd. 
to  his  transl.  into  French  (Paris,  1867). 


LIMITS   OF   STATE   POWER.  245 

only  give  the  merest    outlines  of   Humboldt's   theory,    with 
Humboldt  on  the  which  that  of  the  two  other  writers  in  the  main 
state's iinm.  coincides.      His  leading  principle   is  that  "  the 

highest  aim  of  every  man  is  the  highest  and  most  symmetri- 
cal cultivation  of  his  powers  in  their  individual  peculiarities, 
and  that  to  attain  to  this  end  freedom  of  action  as  well  as 
diversity  of  situation  are  necessary."  This  being  so,  the  ac- 
tion of  the  state  must  be  such  as  to  leave  both  the  end  and 
the  means  of  development  untouched  by  law,  except  so  far  as 
law  is  necessary,  not  to  foster  or  incite  but  simply  to  protect 
and  defend.  The  care  of  the  state  can  be  looked  at  from 
several  sides.  1.  It  can  aim  at  the  positive,  especially  the 
physical  welfare  of  the  citizen.  Such  care  of  the  state  is 
harmful,  as  producing  uniformity,  weakening  power,  injur- 
ing individuality  by  general  laws,  making  administration  more 
complicated,  and  thus  creating  new  evils.  We  have  then  this 
norm  for  limiting  a  state's  action, — that  "  it  must  abstain  from 
all  care  for  the  positive  welfare  of  the  citizens,  and  take  no 
step  for  their  security  against  each  other  and  against  external 
enemies  beyond  what  is  necessary.  Let  it  restrict  their  free- 
dom for  no  other  end."  The  means  taken  by  the  state  for 
encouraging  physical  welfare,  whether  direct  or  indirect,  are 
all  objectionable.  Where  the  private  person  can  do  what  the 
state  can,  he  has  a  stronger  interest  to  do  it  advantageously  ; 
where  he  cannot,  free  associations  of  private  persons  can  make 
state  action  unnecessary. 

From  the  state's  positive  care  the  author  passes  on  to  its 
negative  care,  in  which  the  main  office  of  the  state  consists. 
Omitting  what  he  says  of  protection  against  outward  enemies, 
we  find  that,  in  treating  of  the  protection  of  the  citizens  with- 
in the  country  and  in  relation  to  one  another,  he  denies  edu- 
cation, religion,  improvements  in  morals,  to  be  provinces 
within  which  the  state  ought  to  act  by  positive  legislation. 
His  leading  principle  here  is  "that  the  state  ought  to  abstain 
entirely  from  all  efforts,  direct  or  indirect,  to  act  upon  the 
character  and  morals  of  the  nation,  except  so  far  as  this  is  the 
unavoidable  consequence  of  its  otherwise  absolutely  necessary 


246  POLITICAL   SCIENCE. 

measures,  and  that  everything  promotive  of  such  action,  par- 
ticularly all  especial  oversight  of  education  and  religious  in- 
stitutions, laws  against  luxury,  etc.,  are  entirely  outside  of 
the  limits  of  its  efficiency."  (vii.,  p.  98.)  To  education  by 
the  state  he  objects  as  cramping  the  variety  of  culture  neces- 
sary for  the  highest  development  of  the  nation,  and  as  not 
required,  because  private  institutions  of  education  will  not  be 
wanting,  (p.  57.)  This  last  opinion,  as  far  as  the  poorer 
classes  of  all  modern  states  are  concerned,  will  be  thought  to 
be  very  strange  and  more  than  questionable. 

To  the  state's  interference  in  the  province  of  religion  he 
objects,  as  involving  special  favor  for  certain  opinions  and 
exercising  too  much  control  over  the  individual  man.  "The 
removal  of  obstacles  which  prevent  acquaintance  with  religi- 
ous ideas  and  the  cherishing  of  the  free  spirit  of  investigation 
are  the  only  means  which  the  legislator  can  make  use  of.  If 
he  goes  further,  he  seeks  to  promote  religiosity  in  the  direct 
way  or  to  lead  it,  or  if  he  even  takes  certain  definite  ideas 
under  his  protection  ;  he  demands  faith  on  authority  instead 
of  true  conviction,  and  thus  hinders  the  aspirations  of  the 
spirit,  the  development  of  the  soul's  powers.  Thus,  perhaps, 
by  getting  possession  of  the  imagination,  by  momentary  ex- 
citements, he  calls  forth  legality  of  action,  but  never  true  vir- 
tue. For  true  virtue  is  independent  of  all  religion,  and  incon- 
sistent with  religion  which  is  commanded  and  received  on 
authority"  (p.  72).  Moreover,  the  state  has  no  access  to 
the  leadingcause  which  produces  morality,  i.  e.,  to  the  form  in 
which  religious  conceptions  are  received  by  the  mind.  For 
these  and  other  reasons  the  proposition  must  be  accepted, 
that  religion  lies  entirely  outside  of  state  action,  and  that 
preachers,  as  well  as  divine  service  in  general,  must  be  left  to 
the  communities,  without  any  especial  public  oversight. 

The  improvement  of  morals  by  state  institutions  is  to  be 
effected,  if  at  all,  only  by  specific  prohibitions  of  acts  in  them- 
selves immoral  or  leading  to  immorality.  It  may  be  com- 
prised in  checks  put  on  sensuality  (p.  82  et  seq.).  But  such 
restraints  only  act  on  the    outward   conduct  ;  and   although 


LIMITS   OK   STATE   POWER.  247 

they  may  produce  a  society  of  quiet,  peaceful  men,  they  can- 
not produce  a  union  of  freemen,  whose  ideas  respecting  their 
destination  and  value  shall  be  enlightened,  and  their  wills 
strong  enough  to  overcome  their  prevailing  inclinations.  Thus 
nothing  is  gained  for  true  perfection.  The  office  of  acting  on 
the  morals  of  a  community  then  does  not  belong  to  a  state. 

There  are  many  actions  of  men  in  society  which  directly 
affect  only  themselves.  The  only  reason  for  police  laws  and 
a  police  system  is  prevention  of  injury  to  others.  A  man 
may  do  things  exciting  moral  disapprobation  in  others — may 
commit  deeds  which,  if  copied  by  others,  would  injure  them  in 
their  character  or  good  name,  and  yet  not  pass  beyond  the 
bounds  of  his  rights  and  freedom.  Even  the  sight  of  an  action, 
or  the  hearing  of  arguments  calculated  to  sap  morality  or  per- 
vert the  mind  of  another,  cannot  be  prevented  by  law.  Yet 
in  practical  matters  the  superior  skill  of  one  man  may  enable 
him  to  impose  on  the  ignorance  of  another,  so  that  he  shall 
freely  do  what  will  be  to  his  prejudice.  In  such  a  case,  of 
which  physicians  and  lawyers  may  furnish  examples,  Hum- 
boldt would  require  a  certificate  from  the  state  that  the  per- 
sons claiming  to  have  especial  skill  are  entitled  to  confidence. 
Yet  such  control  ought  to  be  exceedingly  limited.  Prohibi- 
tive laws  should  embrace  only  those  cases  where,  without  or 
even  against  the  will  of  another,  a  man  in  whom  he  trusts  can 
do  him  injury  by  assuming  a  profession  for  which  he  is  not 
fitted  (p.  109).  A  rule  for  the  limits  of  state  action  is  ex- 
pressed in  these  terms  by  our  author  (pp.  in,  112):  "To 
protect  its  citizens,  the  state  must  forbid  or  restrict  those  ac- 
tions having  an  immediate  relation  to  the  actor  alone,  whose 
consequences  injure  others  in  their  rights — that  is,  which,  with- 
out their  consent,  diminish  their  freedom  or  their  goods,  or 
from  which  these  results  may  fairly  be  apprehended  to  pro- 
ceed. The  greatness  of  the  injury  to  be  apprehended,  and  of 
the  restriction  or  freedom  to  be  required,  by  prohibitive  laws, 
is  to  be  taken  into  account,  equally  with  the  probability  of 
the  injury  that  may  be  done.  All  restrictions  beyond  this  lie 
outside  of  the  limits  of  a  state's  [rightful]  action." 


248  POLITICAL   SCIENCE. 

There  are  certain  persons  to  whom  the  state  is  bound  to 
afford  especial  protection  on  account  of  their  helplessness — ■ 
children  yet  immature  in  their  reason,  and  those  who  are  defi- 
cient in  intellect.  The  protection  of  the  former  consists  (i) 
in  fixing  the  time  of  their  majority,  which  may  properly  be 
reached  not  all  at  once,  but  by  degrees  ;  (2)  in  seeing  that  pa- 
rents fulfil  their  duties  towards  their  children — especially  that 
they  look  out  for  a  calling  to  be  adopted  by  their  children 
when  these  come  to  act  for  themselves — and  that  children  ful- 
fil theirs  towards  their  parents  ;  but  all  choice  by  the  state  of 
a  calling  for  the  children,  or  inducements  to  lead  them  to 
choose  one  rather  than  another,  are  to  be  carefully  avoided  : 
(3)  in  selecting  guardians  for  children,  when  their  parents 
die  before  they  are  mature  (which  selection,  however,  may 
by  law  be  left  to  parents  before  their  death,  or  to  others 
most  interested  in  the  children  afterwards)  ;  (4)  and  finally, 
in  preventing  children  thus  left  from  bearing  the  responsi- 
bility of  actions  done  on  their  own  account  whilst  immature, 
and  punishing  others  who  seek  to  take  advantage  of  them 
(pp.  166,  167). 

The  theory  thus  set  forth  in  regard  to  the  due  limits  of 
state  action,  Humboldt  thinks,  "  ought  to  be  applied  to  the 
real  condition  of  things,  so  far  and  with  such  approxima- 
tions as  possibility  allows  and  no  necessity  hinders.  The 
possibility  depends  on  this,  that  a  people  is  sufficiently  able 
to  receive  the  freedom  which  theory  requires,  and  that  this 
freedom  can  give  forth  those  salutary  consequences  which 
always  accompany  it  unless  there  are  obstacles  in  the  way. 
The  counteracting  necessity  is  this,  that  the  freedom  once 
granted  may  destroy  results  without  which  no  further  pro- 
gress is  possible,  and  that  even  the  existence  [of  the  state] 
may  be  in  jeopardy"  (p.  186). 

The  great  abstractness  of  this  essay  may  prevent  the  real 
difficulties  in  its  practical  application  from  being  at-  once 
noticed.  Would  the  author,  for  instance,  go  so  far  as  to  say 
that  indecent  exposures  of  the  person,  the  going  naked 
through  a  crowded  street,  ought   not  to  be  prohibited  since 


LIMITS   OF   STATE   POWER.  249 

such  things  do  no  direct  injury  to  others  besides  the  actor  ? 
Or,  should  the  state  provide  no  education  for  orphans  whom 
the  state,  as  he  admits,  is  bound  to  care  for,  or  refrain  from 
insisting  that  parents  should  send  children  to  school  ? 

But  we  refrain  at  present  from  further  comments,  and  pass 
on  to  give  an  outline  of  Mr.  J.  S.  Mill's  treatise  on  liberty, 
which  was  suggested  apparently  by  von  Humboldt's,  but  is 
much  less  abstract  and  takes  a  clearer  view  of  the  field  than 
that  of  the  German  author. 


*  87. 

Mr.   Mill's   object  in  his  essay  on  liberty  is  to  assert  the 
j.  s.  Mill's  views   principle    that    self-protection    is    the    sole    end 

on  the  limits  of  state  .  ....... 

power.  lor  which  the  state,  or  any  individual,  is  war- 

ranted in  interfering  with  the  liberty  of  any  other  member  of 
society.*  "  The  only  purpose  for  which  power  can  be  right- 
fully exercised  over  any  member  of  a  civilized  community, 
against  his  will,  is  to  prevent  harm  to  others."  He  may  be 
remonstrated  with,  reasoned  with,  but  not  compelled.  "  The 
only  part  of  the  conduct  of  any  one,  for  which  he  is  amena- 
ble to  society,  is  that  which  concerns  others.  In  the  part 
which  merely  concerns  himself  his  independence  is  of  right 
absolute.  Over  himself,  over  his  own  body  and  mind,  the  in- 
dividual is  sovereign"  (p.  23,  Amer.  ed.  of  1863). 

This  principle  applies  only  to  mature  persons,  and  also 
leaves  "  out  of  consideration  those  backward  states  of  society 
in  which  the  race  itself  may  be  considered  as  in  its  nonage." 
In  such  an  age  "  a  ruler  full  of  the  spirit  of  improvement  is 
warranted  in  the  use  of  any  expedients  that  will  attain  an  end 
perhaps  otherwise  unattainable.  Despotism  is  a  legitimate 
mode  of  government  in  dealing  with  barbarians,  provided  the 

*  The  reader  may  compare  to  his  advantage  with  this  exposition 
of  Mr.  Mill's  views,  Mr.  Stephen's  "  Liberty,  Equality  and  Frater- 
nity." (Amer.  ed.  of  1873.)  In  ray  remarks  I  have  nothing  to  do 
with  Mr.  Mill's  want  of  proof  of  his  positions,  nor  with  his  occa- 
sional anti -religious  one-sidedness. 


2=0  POLITICAL   SCIENCE. 

end  be  their  improvement  and  the  means  be  justified  by  actu- 
ally effecting  that  end  *  (p.  24). 

The  appropriate  region  of  human  liberty  is  that  portion  of 
a  man's  life  and  conduct  which  affects  only  himself.  If  he 
does  an  act  positively  hurtful  to  others,  he  is  liable  to  legal 
penalties,  or  at  least  to  disapprobation  ;  and  there  are  many 
positive  acts  for  the  benefit  of  others  which  he  may  be  right- 
fully compelled  to  perform,  such  as  to  give  evidence  in  a 
court  of  justice,  to  do  his  part  in  the  common  defence  or  in 
bearing  any  burdens  that  can  only  be  borne  in  common  ;  al- 
though to  be  compelled  to  ward  off  evil  from  others  is  an  ex- 
ceptional rather  than  an  ordinary  obligation  (p.  26).  No 
indirect  result  of  what  a  man  does  for  himself  is  he  respon- 
sible for.  The  liberties  included  in  that  part  of  a  man's 
agency  which  terminates  in  himself  are  liberty  of  conscience, 
liberty  of  thought  and  feeling,  absolute  freedom  of  opinion 
and  of  expressing  opinion  on  all  subjects,  liberty  of  tastes 
and  pursuits,  and  liberty  of  combination  to  do  whatever  each 
of  the  parties  had  the  freedom  of  doing. 

Liberty  of  thought  and  discussion  (chap,  ii.),  through  the 
press  or  in  any  other  way,  can  never  be  rightfully  abridged, 
and  is  not  amenable  to  punishment,  except  where  it  does  di- 
rect injury  to  another  person.  Thus,  to  maintain  the  lawful- 
ness of  tyrannicide  in  the  abstract  is  itself  lawful  ;  although  to 
maintain  it  with  the  view  of  instigating  the  murder  of  a  sov- 
ereign may  justly  call  for  punishment,  especially  if  it  can  be 
shown  that  the  act  was  a  direct  consequence  of  the  instigation. 
Neither  government  nor  people  has  any  right  to  abridge  this 
liberty  of  thought  and  discussion.  "  If  all  mankind  minus 
one  were  of  one  opinion,  and  only  one  person  of  the  contrary 
opinion,  mankind  would  no  more  be  justified  in  silencing  that 
one  person,  than  he,  if  he  had  the  power,  would  be  justified 
in    silencing    mankind"    (p.    35).        "The    peculiar   evil    of 

*That  is,  justified  in  the  view  of  those  who  come  after.  The  des- 
pot works  under  an  uncertainty  as  to  actual  results.  Mr.  Mill  would 
doubtless  allow  hiin  the  privilege  of  acting  on  the  highest  accessible 
probability. 


LIMITS   OF   STATE   POWER.  251 

silencing  the  expression  of  opinion  is  that  it  is  robbing  the 
human  race — posterity  as  well  as  the  existing  generation  ; 
those  who  dissent  from  the  opinion  still  more  than  those  who 
hold  it.  If  the  opinion  is  right,  they  are  deprived  of  the 
opportunity  of  exchanging  error  for  truth  ;  if  wrong,  they 
lose  the  clear  perception  and  livelier  impression  of  truth  pro- 
duced by  its  collision  with  error  "  (p.  36).  Mr.  Mill  discusses 
at  length  three  possible  cases.  It  may  be  that  the  opinion 
which  it  is  attempted  to  suppress  may  be  true  or  may  be  false, 
or,  what  is  more  common  than  either,  may  unite  elements  of 
truth  and  falsehood  (pp.  36,  68,  88).  In  all  cases  discussion 
promotes  the  final  victory  of  truth.  In  the  last  case  a  one- 
sided theory  may  counteract  the  effects  of  an  opposite  theory 
of  the  same  nature,  and  bring  back  opinion  to  the  fair  and 
just  middle  ground.  Add  to  this  that,  without  earnest  con- 
troversy, the  meaning  of  an  opinion  or  doctrine,  if  true,  will 
be  in  danger  of  being  deprived  of  its  vital  effect  on  character 
and  conduct ;  there  will  be  no  growth  of  heartfelt  conviction 
from  reason  or  personal  experience  (p.  102).  So  then,  not 
only  the  state,  but  society  also,  is  bound  to  tolerate  and  put  no 
obstacles  in  the  way  of  professing  and  advocating  any  opin- 
ions which  do  no  direct  injury  to  any  one  else  besides  him 
who  entertains  them.  Nor  can  any  limits  be  set  to  the  zeal 
and  animosity  of  discussion,  so  long  as  they  do  not  invade 
the  character  of  an  opponent. 

The  same  freedom  thus  allowed  to  the  formation  and  ex- 
pression of  opinions  must  be  conceded  by  the  state,  and  by 
the  feelings  of  society  to  action,  so  long  as  it  is  at  the  risk 
and  peril  of  the  actor.  Only  when  acts  of  any  kind,  without 
justifiable  cause,  do  harm  to  others,  may  they  be  controlled 
by  the  active  sentiments,  and,  where  needful,  by  the  active 
interference  of  mankind."  "The  same  reasons  which  show 
that  opinion  should  be  free,  prove  also  that  one  should  be 
allowed  to  carry  his  opinions  into  practice  at  his  own  cost." 
It  is  desirable,  in  short,  that  in  things  which  do  not  primarily 
concern  others  individuality  should  assert  itself.  Where  not 
the  person's  own  character,  but  the  traditions  and  customs  of 


2  52  POLITICAL   SCIENCE. 

other  people  are  the  rule  of  conduct,  there  is  wanting  one  of 
the  principal  ingredients  of  human  happiness  and  quite  the 
chief  ingredient  of  individual  and  social  progress  "  (chap, 
in,  pp.  107-109).  It  is  true,  indeed,  that  "  in  some  early 
states  of  society  individual  forces  might  be  and  were  too  much 
ahead  of  the  power  which  society  then  possessed  of  disciplin- 
ing and  controlling  them."  "  But  society  has  now  fairly  got 
the  better  of  individuality,  and  the  danger  which  threatens 
human  nature  is  not  the  excess,  but  the  deficiency,  of  personal 
impulses  and  preferences  "  (p.  117).  Men  are  bowed  down 
under  a  yoke  of  usages  imposed  on  them  by  society  ;  their 
thinking  is  done  for  them  ;  they  dare  not  be  independent. 
"  The  greatness  of  England  is  now  all  collective  ;  individually 
small,  we  only  appear  capable  of  anything  great  by  our  habit 
of  combining.  But  it  was  men  of  another  stamp  than  this 
that  made  England  what  it  has  been,  and  men  of  another 
stamp  will  be  needed  to  prevent  its  decline." 

These  remarks  on  the  importance  of  individuality,  or  of 
freedom  and  courage  in  expressing  as  well  as  in  acting  out 
one's  own  convictions,  are  preparatory  to  the  inquiry  touch- 
ing the  rightful  limit  of  the  individual's  sovereignty  over  him- 
self. Where  does  the  authority  of  society  begin  ?  How 
much  of  human  life  should  be  assigned  to  individuality  and 
how  much  to  society  ?  (chap,  iv.,  p.  144).  The  answer  is, 
that  "  the  inconveniences  which  are  strictly  inseparable  from 
the  unfavorable  judgment  of  others  are  the  only  ones  to 
which  a  person  should  ever  be  subject  for  that  portion  of 
his  conduct  and  character,  which  concerns  his  own  good,  but 
which  does  not  affect  the  interests  of  others  in  their  relations 
with  him"  (pp.  150,  151).  "  Acts  injurious  to  others  are  fit 
objects  of  moral  reprobation,  and  in  grave  cases  of  moral 
retribution  and  punishment."  So  also  "the  dispositions 
which  lead  to  them  are  fit  subjects  of  a  disapprobation  which 
may  rise  to  abhorrence." 

But  here  a  difficulty  meets  us  in  regard  to  practices  con- 
demned by  the  moral  sense  of  society,  and  yet  directly  in- 
juring no  one  besides  him  who  is  responsible  for  it.     Such 


LIMITS   OF   STATE   POWER.  253 

practices  are  gambling,  drunkenness,  incontinence,  idleness, 
and  the  like.  First,  as  to  the  feeling  entertained  towards  such 
a  person.  Does  it  differ  from  the  feeling  which  arises  when 
a  man  commits  a  wrong  against  the  state  or  a  fellow -man. 
Mr.  Mill  thinks  that  "  it  makes  a  vast  difference  both  in  our 
feeling  and  in  our  conduct  towards  him,  whether  he  displeases 
us  in  things  in  which  we  have  a  right  to  control  him.  or  in 
things  in  which  we  know  that  we  have  [no  right].  If  he  dis- 
pleases us,  we  may  express  our  distaste  and  we  may  stand 
aloof  as  well  from  a  person  as  from  a  thing  that  displeases  us  ; 
but  we  shall  not  therefore  be  called  on  to  make  his  life  uncom- 
fortable ?  "  (p.  153). — The  difference  it  makes  in  our  conduct 
is  very  obvious.  We  have  nothing  to  do  with  him  in  our  re- 
lation of  fellow-members  of  the  state,  whether  he  violates 
the  laws  of  morality  only,  or  does  a  wrong  towards  a  third 
person.  In  either  case  we  stand  aloof.  But  our  abhorrence 
of  wrong-doing  may  be  equally  intense,  and  is  certainly 
more  unselfish,  when  a  vice  or  fault  does  no  direct  harm  to  the 
community  of  which  we  form  a  part,  than  when  it  inflicts 
positive  injury  on  some  fellow-citizen.  Take  the  case  of 
cruelty  to  animals.  A  humane  man  is  kindled  into  indigna 
tion  by  an  action  of  this  sort ;  and  he  is  indignant,  not  be 
cause  his  sympathetic  nature  is  distressed — which  only  guide* 
him  towards  the  indignation — but  because  the  animal  is  made 
to  suffer  without  any  reason.  So  again,  immodest  exposures 
of  the  person  would  arouse  in  an  incorrupt  society  the  high- 
est degree  of  resentment,  and  the  feeling  has  nothing  to  do 
with  wrong  done  to  society  or  injury  to  individuals,  but  only 
or  at  least  chiefly  with  the  outrage  in  itself.  That  when  an 
injury  is  done  in  a  society  there  may  be  superadded,  perhaps, 
the  feelings  of  alarm  and  other  self-protecting  ones,  is  quite 
natural,  but  the  moral  disapprobation  against  a  drunkard 
reeling  through  the  streets  may  be  much  greater  than  that 
against  a  thief  who  steals  a  loaf  of  bread  from  a  baker's  shop. 
Nay,  this  feeling  is  so  strong  that  it  leads  often  to  lawless  vio- 
lence, which  is  justified  by  bystanders. 

Secondly,  as  to  the  immoral   conduct  condemned  by  the 


254  POLITICAL   SCIENCE. 

community.  Mr.  Mill  would  adhere  rigidly  to  the  principle 
that  no  immoral  act,  in  which  a  person  is  not  led  to  violate  a 
distinct  and  assignable  obligation  to  any  other  person,  ought 
to  be  prohibited  or  punished  (p.  156).  "  No  person  ought 
to  be  punished  simply  for  being  drunk,  but  a  soldier  or  police- 
man should  be  punished  for  being  drunk  on  duty"  (p.  158). 
"  If  a  man  through  intemperance  or  extravagance  becomes 
unable  to  pay  his  debts,  or,  having  undertaken  the  moral 
responsibility  of  a  family,  becomes  from  the  same  cause  in- 
capable of  supporting  or  educating  them,  he  is  deservedly 
reprobated  and  might  be  justly  punished,  but  it  is  for  the 
breach  of  duty  to  his  family  or  creditors,  not  for  the  extrava- 
gance "  (p.  157).  With  regard,  however,  "to  the  merely 
contingent  or,  as  it  may  be  called,  constructive  injury  which  a 
person  causes  to  society  by  conduct  which  neither  violates 
any  specific  duty  to  the  public,  nor  occasions  perceptible 
hurt  to  any  assignable  individual  except  himself,  the  incon- 
venience is  one  which  society  can  afford  to  bear  for  the  sake 
of  the  greater  good  of  human  freedom  "  (p.  158).  Moreover 
"  if  society  lets  any  considerable  number  of  its  members  grow 
up  mere  children,  incapable  of  being  acted  on  by  rational 
consideration  of  distant  motives,  society  has  itself  to  blame 
for  the  consequences."  "  Armed  with  all  the  powers  of  edu- 
cation and  the  authority  which  a  received  opinion  exercises, 
and  aided  by  the  natural  penalties  which  fall  on  those  who 
incur  the  distaste  or  the  contempt  of  those  who  know  them," — 
' '  let  not  society  pretend  that  it  needs,  besides  all  this,  the  power 
to  issue  commands  and  enforce  obedience  in  the  personal  con- 
cerns of  individuals,  in  which,  on  all  principles  of  justice  and 
policy,  the  decision  ought  to  rest  with  those  who  are  to  abide 
the  consequences  "  (p.  160).  Add  to  this  a  still  stronger  ar- 
gument against  such  interference  with  personal  freedom,  that 
"the  odds  are  that  when  society  interferes,  it  interferes 
wrongly  and  in  the  wrong  place  "  (p.  161).  And  this  is 
freely  illustrated  by  various  prohibitory  regulations,  such  as 
Sabbath  laws,  laws  for  preventing  intemperance,  and  laws 
against  the  Mormons. 


LIMITS   OF   STATE   POWER.  255 

In  the  last  chapter  of  his  work  on  liberty,  Mr.  Mill  offers 
applications  and  in  a  certain  sense  limitations  of  his  own 
principles.  His  two  cardinal  maxims  forming  the  entire  doc- 
trine of  his  essay  are,  as  we  have  seen  already,  "  first  that 
the  individual  is  not  accountable  to  society  for  his  actions,  in 
so  far  as  these  concern  the  interests  of  no  person  but  himself." 
Secondly,  for  actions  prejudicial  to  others' interests  "  the  indi- 
vidual is  accountable,  and  may  be  subjected  to  social  or  to 
legal  punishment,  if  society  is  of  opinion  that  the  one  or 
the  other  is  requisite  for  its  protection  "   (pp.  181,  182). 

Here  we  have  to  make  the  criticism  that  what  are  called 
social  punishments  are  of  a  very  different  sort  from  legal  ones. 
It  is  not  society  as  a  unit  that  expresses  moral  disapproba- 
tion, but  various  classes  and  portions  of  society,  while  it  is 
organized  society  that  visits  offenders  with  penalty.  And 
again,  as  has  been  said  once  before,  the  moral  disapprobation 
is  not  called  forth  merely  or  principally  by  the  instinct  of  self- 
protection;  it  is  directed  against  gross  acts  of  immorality, 
irrespective  of  their  consequences  to  the  state  or  to  any  of  its 
members.  But  to  return  to  Mr.  Mill's  maxims.  He  justly 
remarks  that  it  will  not  follow  "  because  damage  or  probabil- 
ity of  damage  to  the  interests  of  others  can  alone  justify  the 
interference  of  society,  that  therefore  it  always  does  justify 
such  interference.  In  many  cases,  an  individual,  in  pursuing 
a  legitimate  object,  necessarily,  and  therefore  legitimately, 
causes  pain  or  loss  to  others,  or  intercepts  a  good  which  they 
had  a  reasonable  hope  of  obtaining  "  (p.  182).  Thus  new 
inventions  may  throw  old  machinery  out  of  use,  and  laborers 
out  of  employment  for  a  time.  In  the  competitions  of  busi- 
ness one  man's  success  often  injures  the  prosperity  of  another. 

The  prevention  of  crime,  again,  which  is  an  undisputed 
function  of  a  government,  starts  some  difficult  questions,  and 
is  itself  liable  to  be  abused  to  the  prejudice  of  liberty.  If  a 
person  is  discovered  in  his  preparations  to  commit  a  crime, 
neither  a  public  officer  nor  a  private  person  is  bound  to  look 
on  inactive  until  the  crime  is  committed  (p.  185).  So  "  if 
a  person  is  seen  in  the  act  of  beginning  to  cross  an  unsafe 


256  POLITICAL   SCIENCE. 

bridge  any  one  might  seize  him  and  turn  him  back  without 
any  real  infringement  of  his  liberty  "  *  (p.  186).  Yet  "  where 
there  is  only  a  danger  of  mischief,  no  one  but  the  person  him- 
self can  judge  of  the  sufficiency  of  the  motive  which  may 
prompt  him  to  incur  the  risk."  In  this  case,  therefore,  a  man 
in  full  possession  of  his  powers  ought  to  be  only  warned  of 
his  danger.  The  sale  of  poisons  presents  questions  of  interest 
as  it  regards  the  extent  of  precaution  that  ought  to  be  used 
by  the  vendors.  To  label  a  vial  or  package  with  some  word 
denoting  the  character  of  the  contents  may  be  required  ;  while 
to  provide  by  law  that  a  medical  man's  certificate  should  be 
necessary  to  authorize  the  sale  would  sometimes  prevent  its 
use  where  it  was  greatly  needed  (p.  187). 

The  right  of  society  to  ward  off  crimes  against  itself  by  pre- 
cautionary police,  suggests  limitations  to  the  rule  that  mis- 
conduct affecting  the  individual  only  may  not  be  meddled  with 
in  the  way  of  precaution  or  punishment.  Thus  while  "  drunk- 
enness in  ordinary  cases  is  not  a  fit  subject  for  legislative 
interference,"  Mr.  Mill  "  would  deem  it  perfectly  legitimate 
that  a  person  who  had  once  been  convicted  of  any  act  of  vio- 
lence to  others  under  the  influence  of  drink  should  be  under 
a  special  legal  restriction,  personal  to  himself;  that,  if  he  were 
afterward  found  drunk,  he  should  be  liable  to  a  penalty,  and 
that,  when  in  that  state  he  committed  another  offence,  the 
punishment,  to  which  he  would  be  liable  for  that  offence, 
should  be  increased  in  severity.  The  making  himself  drunk 
in  a  person  whom  drunkenness  excites  to  harm  is  a  crime 
against  others."  So,  "  if  from  idleness  or  from  any  other  un- 
avoidable cause,  a  man  fails  to  perform  his  legal  duties  to 
others,  as  for  instance  to  support  his  children,  it  is  not  tyr- 
anny to  force  him  to  fulfil  that  obligation  by  compulsory  labor, 
if  no  other  means  are  available  "  (pp.  188-189). 

*  Mr.  Mill  adds,  as  the  reason  of  this  that  "  liberty  consists  in  do- 
ing what  one  desires,  and  he  does  not  desire  to  fall  into  the  river." 
Is  not  this  a  little  sophistical,  and  might  not  our  author  be  asked 
whether  a  thorough  drunkard  desires  to  ruin  himself  by  drink  ?  Would 
he  stop  him  ? 


LIMITS   OF   STATE   POWER.  2  57 

Again,  certain  acts  directly  injurious  to  the  agents  them- 
selves ought  to  be  prohibited,  "  which,  if  done  publicly,  are 
a  violation  of  good  manners,  and  thus  come  within  the  cate- 
gory of  offences  against  others.  Of  this  kind  arc  offences 
against  decency  "  (p.  189). 

The  cases  here  brought  forward  by  Mr.  Mill  are  clearly 
distinct.  An  idler  who  does  not  support  a  family  and  a  per- 
son who  exposes  his  person  indecently  commit  certain  tangi- 
ble acts  ;  but  it  is  only  probable  that  one  who  has  been  violent 
under  the  influence  of  strong  drink  will  be  violent  again,  or 
even,  if  punished,  will  drink  again.  Should  a  man  who  has 
cheated  another  be  deprived  of  the  power  of  contract,  or  a 
man  who  has  caned  another  in  the  street  be  prohibited  from 
carrying  a  cane  ?  Still  further,  the  probability  is  that  a  man 
who  drinks  to  excess  may  commit  violence.  How  much 
probability  is  needed  for  such  personal  restrictions  as  Mr.  Mill 
recommends  ?  Would  not  a  general  law  against  all  drunken 
persons  be  justified  on  these  grounds,  not  to  speak  of  the 
general  evil  they  inflict  on  society  ? 

The  other  recommendation  of  prohibiting  (and  therefore 
punishing)  public  indecency  calls  for  several  remarks.  It 
is  a  violation  of  good  manners  and  thus  an  offence  against 
other  people,  says  Mr.  Mill.  But  in  what  sense  is  it  such,  in 
which  offences  by  public  acts  against  good  morals  are  not  such 
also  ?  And  are  not  good  morals  in  actions  more  important  to 
society  than  good  manners  ?  Manners  are  morals,  viewed  as 
usages  demanded  by  general  opinion  for  some  moral  reason 
which  itself  called  for  the  usage  and  then  retired  into  the 
background.  They  are  institutions  of  society,  but  not  of 
organized  society.  Why  should  violations  of  manners  be 
more  punished  by  society  than  immoral  acts.  So  far  as  we 
can  see,  by  this  admission  Mr.  Mill  admits  everything.  If 
public  exposures  of  the  person  are  punishable,  they  are  so 
because  what  we  call  modesty  is  a  moral  quality;  and  an  ex- 
tremely gross  want  of  it  arouses  the  indignation  of  society  into 
demands  for  the  repression  or  punishment  of  such  actions. 
Whether  the  moral  feeling,  or  the  grosser  immoralities  which 
17 


258  POLITICAL  SCIENCE. 

it  protests  against,  viewed  in  their  effects  on  society,  furnish 
the  reason  for  prohibitory  and  penal  law,  may  be  made  a 
question.  To  us  it  seems  certain  that  they  are  inseparable, 
that  a  ground  for  the  obligations  to  be  modest  lies  in  the  finer 
feelings  of  human  nature,  as  called  forth  in  the  family  ;  and 
that  the  discovery  by  experience  of  the  evils  wrought  in  all 
kinds  of  societies  and  intercourse  by  the  opposite  quality 
and  its  actings  is  an  additional,  more  palpable  reason  for  law 
and  penalty.  But  however  this  may  be,  there  is  clearly  no 
reason  why  exposures  of  the  person  should  be  prohibited, 
which  would  not  in  certain  forms  of  society  have  visited  with 
penalty  disrespect  to  the  aged,  and  in  others,  a  matron's  ap- 
pearing in  public  unveiled  ;  and  which,  still  more,  ought  not 
now  to  make  cruelty  to  animals  in  public,  or  blasphemy  or 
intoxication  in  public  a  punishable  offence. 

An  important  class  of  actions  consists  of  such  as  supply 
the  means  of  temptation  or  furnish  aid  or  concealment  to 
misdoers.  Can  rational  legislation  control  actions  such  as 
these  ?  Our  author's  principle  is  that  "  Whatever  it  is  per- 
mitted to  do,  it  must  be  permitted  to  advise  to  do  "  (p.  191). 
"  The  question  is  doubtful  only  when  the  instigator  derives 
a  personal  benefit  from  his  advice."  "  Fornication  must  be 
tolerated,  and  so  must  gambling,  but  should  a  person  be  free 
to  be  a  pimp  or  to  keep  a  gambling  house  ?  "  The  case  lies, 
says  Mr.  Mill,  "  on  the  exact  boundary  line  between  two 
principles,  and  it  is  not  at  once  apparent  to  which  of  the  two 
it  properly  belongs.  There  are  arguments  on  both  sides." 
After  presenting  the  arguments  on  both  sides,  he  says,  "I 
will  not  venture  to  decide  whether  they  are  sufficient  to  jus- 
tify the  moral  anomaly  of  punishing  the  accessory,  when  the 
principal  is  (and  must  be)  allowed  to  go  free  ;  of  fining  or 
imprisoning  the  procurer  but  not  the  fornicator,  the  gambling 
house  keeper  but  not  the  gambler"  (p.  193).  If  it  be  true 
as  one  says  that  "  the  organization  of  lewdness  is  the  disor- 
ganization of  social  morality,"*  it  is  to  be  regretted  that  our 

*  Dr.  Wahlberg  in  Von  Holtzendorf  s  Rechtslexicon,  article  Un. 
zucht. 


LIMITS   OF   STATE   POWER.  259 

teachers  of  political  science  cannot  make  up  their  mind  on  so 
great  a  question.  It  certainly  looks  strange  that  a  procurer 
or  keeper  of  a  house  of  ill-fame  should  be  punishable,  while 
the  frequenters  of  such  a  place  and  the  lewd  women  are  only 
doing  that  which  they  have  a  right  to  do, — which  law  may  not 
attempt  to  repress.  * 

Mr.  Mill  further  asks  whether  the  state,  while  it  permits, 
should  indirectly  discourage  what  it  deems  contrary  to  the 
best  interests  of  the  agent ;  whether,  for  example,  it  should 
take  measures  to  render  the  means  of  drunkenness  more 
costly,  or  add  to  the  difficulty  of  procuring  them  by  limiting 
the  number  of  the  places  of  sale."  After  weighing  the  rea- 
sons/;^ and  con  he  would  have  the  state  decide,  on  grounds 
of  political  economy,  "  what  commodities  the  consumer  can 
best  spare,  and  a  fortiori  to  select  in  preference  those  of  which 
it  deems  the  use  to  be  positively  injurious.  Taxation,  therefore, 
of  stimulants,  up  to  the  point  which  produces  the  largest 
amount  of  revenue,  supposing  that  the  state  needs  all  the 
revenue  which  it  yields,  is  not  only  admissible  but  to  be  ap- 
proved of"  (p.  195).  That  is,  there  must  be  taxes  and  indi- 
rect taxes.  In  laying  them  the  state  must  select  those  arti- 
cles which  can  be  best  spared.  How  best  ?  Can  the  moral 
question  fail  to  come  in  at  this  point  ?  The  exception  to  be 
made  to  these  remarks  is  that  the  higher  the  tax  on  home- 
made stimulants,  the  greater  will  be  the  deterioration  of  the 
cheapest  liquors,  and  thus  a  greater  increase  of  disease  and 
drunkenness  will  follow,  since  the  greater  part  of  such  drinks 
is  used  by  the  poorer  classes  of  society. 

But  ought  the  state  to  adopt  a  system  of  licenses  ?  To 
this  the  answer  is  that  the  license  should  be  issued  not  to 
restrict  liberty  of  use,  but  conduct  dangerous  to  society. 
Offences  against  public  order  are  more  likely  to  originate 
where  drinks  are  offered  for  sale  than  anywhere  else.  The 
power  of  selling,  therefore,  should  be  confined  to  persons  of 
approved  respectability  of  conduct  ;  the  hours  of  sale  ought 
to  be  regulated,  and  the  license  to  be  withdrawn  if  breaches 
of  the  peace  occur  at  a  certain  place,  or  if  it  becomes  a  ren- 


26o  POLITICAL   SCIENCE. 

dezvous  for  concocting  or  preparing  offences  against  the  law. 
Any  further  restriction  is  not  justifiable  in  principle.  "  The 
limitation  in  number,  for  instance,  of  beer  and  spirit-houses 
for  the  express  purpose  of  rendering  them  more  difficult  of 
access  and  diminishing  the  occasions  of  temptation,  not  only 
exposes  all  to  an  inconvenience,  because  there  are  some  by 
whom  the  facility  would  be  abused;  but  is  suited  only  to  a 
state  of  society  in  which  the  laboring  classes  are  avowedly 
treated  as  children  or  savages  "  (p.  196). 

Passing  by  the  remarks  on  the  limitation  of  the  power  of 
contract  and  of  the  father's  control  in  the  family,  where  our 
author  is  in  favor  of  compulsory  education,  but  expresses 
himself  against  a  general  state-system  of  education  as  a  mere 
contrivance  for  moulding  people  to  be  exactly  like  one  an- 
other; we  come  to  cases  of  state  action,  where  "  the  question 
is  not  about  restraining  but  about  helping "  individuals. 
Ought  not  the  government  to  do  or  cause  to  be  done  some- 
thing for  their  benefit  instead  of  leaving  it  to  their  own  sepa- 
rate or  united  voluntary  efforts.  The  objections  of  Mr.  Mill 
to  government  interference,  when  it  does  not  invade  liberty, 
are  (1)  that  the  thing  to  be  done  is  likely  to  be  better  done 
by  individuals  than  by  the  government ;  (2)  that  were  this 
not  so,  they  should  be  left  free  to  do  such  things  as  "  means 
of  their  mental  education,"  "  of  strengthening  their  judg- 
ment," "  accustoming  them  to  the  management  of  joint  con- 
cerns," and  the  like  ;  and  (3)  that  it  is  a  great  evil  to  add 
without  necessity  to  the  power  of  an  administration.  The 
advantage  of  leaving  much  in  the  hands  of  private  persons, 
as  is  done  in  England,  instead  of  throwing  everything  into 
the  hands  of  officials  as  in  France,  is  a  striking  example  used 
both  by  Mr.  Mill  and  by  Mr.  Laboulaye  in  his  "  l'Etat  et  ses 
limites  "  showing  how  greatly  two  nations,  both  under  free  con- 
stitutions, can  differ  in  the  spirit  of  freedom.  The  cause  of  this 
lies  in  the  tendency  towards  diffusion  of  power  in  the  one  coun- 
try and  of  centralization  in  the  other ;  both  of  which  may  be  car- 
ried beyond  due  limits,  but  the  latter  is  far  the  more  dangerous 
of  the  two  to  the  real  and  ultimate  prosperity  of  a  country. 


LIMITS   OF   STATE   POWER.  26 1 

$88. 
The  limitations  of  state-power,  which  Humboldt  and  Mill 

Some  remarks  on     haVe   SCt  f°rth   »"   their  eSSayS  aS   OI1C   °f   thc   ™OSt 

these  opinions.  important  among  the  questions  relating  to  the 
state,  do  not  seem  capable  of  being  reduced  to  exact  rules. 
Even  the  discussion  of  Mr.  Mill  shows  that  the  particular 
points  of  a  practical  nature  which  he  brings  forward  are  in- 
volved occasionally  in  more  or  less  of  doubt.  We  make  the 
following  suggestions  on  this  subject,  in  the  hope  of  contrib- 
uting in  some  small  degree  to  a  true  statement  of  the  subject. 

1.  The  object  aimed  at  or  especially  sought  for  by  these 
two  distinguished  writers  is  not  the  highest  within  the  reach 
of  political  science,  nor  is  it  of  necessity  reached  through  a 
high  degree  of  political  liberty.  Their  object  is  the  calling 
forth  of  the  qualities  of  the  individual,  his  full  and  free  person- 
ality, to  the  greatest  possible  extent.  Now  this  may  be  very 
desirable,  but  the  destination  of  man  with  which  the  concep- 
tion of  rights  is  closely  connected,  the  cultivation  of  the  moral 
nature  by  the  discipline  of  justice,  seem  to  be  much  higher 
ends  in  the  scale  of  true  value  than  the  diversifying  of  individ- 
ual life,  and  the  encouragement  of  all  the  special  talents  and 
sentiments  which  can  be  awakened  in  an  entirely  free  individ- 
ual mind. 

But  besides  this,  the  highest  liberty  in  civilized  society  fails 
to  secure  this  extreme  individualism,  which  is  sought  for  as  a 
good  because  it  exists  so  rarely.  The  more  liberty  the  in- 
dividual has  in  modern  society  of  developing  his  moral  and 
political  life,  the  more  obstacles  he  meets  from  a  general  or 
class  opinion,  which  this  same  liberty  has  cherished.  One 
great  complaint  now  is  that  opinion  runs  in  one  or  two  ruts 
of  thought.  Originality  is  in  part  cut  off  by  the  closeness 
and  rapidity  of  communication.  There  are  some  who  are 
aided  by  the  opportunities  which  freedom  gives  them  in  dis- 
covering what  their  talents  are,  and  in  striking  out  into  new 
paths;  but  opinions  are  more  hampered  than  they  were 
when  men  saw  less  of  one  another,  and  thought  passes  from 


262  POLITICAL   SCIENCE. 

one  to   another  like  coined  money,  received  by  all  at  a  par 
value. 

2.  In  regard  to  the  amount  of  freedom  it  is  a  rule  of  the 
highest  importance,  which  will  be  admitted,  we  think,  without 
hesitation,  that  whatever  the  individual  can  do  without  the 
aid  of  the  state  alone,  in  this  he  should  receive  no  sort  of  as- 
sistance from  the  state  ;  and  that  whatever  associations  of 
individuals  can  accomplish  without  aid  as  well  as  without 
trespassing  on  others'  rights,  they  should  be  left  free  to  do 
for  themselves.  The  possibility  of  such  trespass  alone  requires 
the  supervision  of  the  government.  Whether  the  enterprises 
thus  in  the  hands  of  private  persons  are  wise  or  foolish — this 
is  no  concern  of  the  state,  in  such  a  sense  as  to  justify  keeping 
individuals  or  combinations  of  men  under  the  control  of  its 
superior  wisdom.  Yet  we  concede,  that  when  an  act  of  in- 
corporation is  necessary,  a  just  reason  for  withholding  it  might 
lie  in  the  rashness  of  the  enterprise  projected. 

3.  When  the  state  and  private  capital  may  alike  originate  a 
work  of  public  use,  it  is  in  itself  uncertain  which  of  the  two 
parties  ought  to  undertake  it.  The  state  certainly  ought  not 
to  prohibit  private  persons  from  doing  what  it  may  itself  do, 
on  the  ground  that  the  enterprise  promises  a  large  profit,  for 
the  state  is  not  a  firm  seeking  an  advantageous  investment  of 
its  capital  ;  nor  on  the  ground  that  it  will  deal  more  honestly 
with  its  customers,  which  is  uncertain,  and  if  it  were  certain, 
would  rather  call  for  supervision  over  the  fulfilment  of  pri- 
vate obligations,  than  be  a  reason  why  it  should  itself  assume 
the  burden.  Then,  only,  ought  the  state  to  be  called  upon  to 
undertake  great  works,  when,  by  the  nature  of  the  case,  private 
persons  cannot  contribute  an  adequate  amount  of  capital,  or 
cannot  hope  for  sufficient  remuneration.  But  to  this  it  ought 
to  be  added  that  there  are  states  of  society  in  which  the  prin- 
ciple of  association  is  as  yet  undeveloped,  and  there  is  no 
probability  that  men,  or  companies  of  men,  can  or  will  go  for- 
ward with  great  schemes  of  public  improvement.  In  many 
political  communities  the  government  would  be  unwilling  to 
allow  private  capital  to  undertake  such  works,  if  they  had  the 


LIMITS   OF   STATE   POWER.  203 

ability,  and  thus  the  habit  of  association  is  wanting.  There 
is  in  theory  no  objection  to  the  country  then  taking  the  first 
step;  and  such  public  enterprises,  if  successful,  may  greatly 
stimulate  private  combinations  in  the  future. 

4.  In  the  great  department  of  repressive  legislation,  lying 
outside  of  the  direct  protection  of  human  rights,  as  in  that 
against  immorality,  obscenity,  blasphemy,  the  state  alone  can 
have  any  control.  Again,  where  public  order  or  health  is 
concerned,  no  combination  of  individuals  can  act  unless  in  a 
subordinate  part  and  as  authorized  by  public  power.  So 
that  here  the  state  must  have  the  whole  field  to  itself  through 
its  officers  or  those  of  some  municipal  corporation  represent- 
ing state-power.     The  state  alone  is  equal  to  works  like  these. 

§  89. 
From  what  has  been  said  and  from  the  very  nature  of  so- 
Difficuity  of  ad-  ciety  as  a  state  in  which  persons  endowed  with 

justing  the  limits  of  ... 

state-power.  equal  rights  exist  together,  as  well  as  from  the 

necessity  of  state-power,  it  may  be  inferred  that  a  difficulty 
must  exist  in  reconciling  state-power  with  individual  liberty. 
It  may  transgress  the  due  limits  even  in  seeking  to  keep  indi- 
viduals in  the  exercise  of  their  supposed  rights  from  coming 
into  conflict.  The  inevitable  powers  of  an  armed  police  force, 
and  taxation,  are  in  great  danger  of  being  used  to  repress  in- 
dividual liberty  in  its  just  exercise.  In  all  those  cases  where 
the  state  feels  itself  bound  to  avert  remote  evils  from  so- 
ciety, or  to  defend  the  status  quo  against  dangers  threatened 
by  changes  in  society,  or  seemingly  threatened,  its  vague 
power  of  protection  and  of  self-protection  can  scarcely  fail  to 
clash  with  individual  rights.  Whether  the  difficulty  of  recon- 
ciling the  two  powers,  or  the  union  of  liberty  and  order,  can 
be  exactly  defined  in  an  abstract  way  is  extremely  doubtful. 
We  must  have  strong  states,  and  they  may  crush  individual 
liberty  and  enterprise  ;  Ave  must  have  a  free  people,  and  they 
may  reduce  state-power  to  such  a  minimum  that  the  state  can 
do  nothing  outside  of  the  narrowest  routine,  and  even  may 
not  be  strong  enough  to  protect  the  people  from  anarchy. 


264  POLITICAL   SCIENCE. 

But  let  us  look  for  a  moment  at  a  state  of  things  which  may- 
exist  under  a  strong  government, — at  the  possible  invasions 
or  limitations  of  rights  when  the  constitution  is  far  from  being 
despotic.  A  government  may  undertake  to  limit  the  amount 
of  property  or  of  property  in  land  which  a  man  or  a  family 
can  hold,  on  the  ground  that  concentrated  wealth  will  be  po- 
litically dangerous  or  create  a  proletariat  class.  It  may  re- 
strict or  prohibit  commerce  with  foreign  ports  to  encourage 
home  industry.  It  may  enact  bankrupt  laws  in  violation  of 
contracts.  It  may  limit  the  power  of  testamentary  disposition 
in  various  ways.  It  may  make  divorce  as  easy  or  as  hard  to 
be  obtained  as  it  pleases.  It  may  throw  obstacles  in  the  way 
of  associations  of  private  capitalists,  and  seek  to  do  everything 
by  an  agency  of  government  in  which  private  persons  can  be 
competitors.  It  may  give  special  privileges  and  monopolies. 
It  may  neglect  to  protect  by  sufficient  legislation  the  rights 
of  the  press,  of  religions  worship,  and  of  personal  character. 
It  may  be  able  to  lay  the  burden  of  taxation  unequally,  or 
without  uniform  principles,  now  to  benefit  one  branch  of  in- 
dustry, and  now  another.  It  may  be  suspicious  of  the  people 
and  express  its  feeling  by  a  vexatious  petty  system  of  police 
regulations.  It  may  by  its  taxes  and  its  wars  grind  down  the 
people  into  poverty,  or  rouse  them  into  calamitous  insurrec- 
tions. And  all  this  can  happen  under  almost  any  forms,  if 
the  government  can  feel  its  interests  to  be  separate  from  those 
of  the  people.  Even  party  spirit,  getting  possession  of  a  free 
country,  under  a  definite,  limited  constitution,  can  within 
these  limits  oppress  the  people  more  than  despotic  adminis- 
trations would  dare  to  do,  since  it  can  calculate  on  the  sup- 
port of  a  powerful  party. 

§90. 
In  view  of  the  necessary  liability  of  governments  to  over- 
limits  of  ri  hts  steP  tnc'r  Power  and  of  the  proneness  of  politi- 
and  state  power.       cai  communities   to  lodge  too  much  power  in 
the  hands  of  their  governments,  we  proceed  to  consider  very 
briefly : 


LIMITS   OF   STATE   POWER.  265 

1.  What  are  some  of  the  just  limits  on  the  exercise  of  indi- 
vidual rights  ; 

2.  What  are  some  of  the  limits  that  can  be  put  on  the 
powers  of  the  state  and  the  government  over  the  people  ; 

3.  Are  there  any  liberties  or  special  rights  under  the  consti- 
tutions which  can  serve  as  guaranties  of  freedom  and  as 
checks  against  power. 

These  points  will  not  be  considered  at  large,  for  the  details 
at  least  belong  to  the  practical  side  of  politics,  and  the  gene- 
ral outlines  themselves  have  only  been  reached  by  favored 
nations  after  long  experience. 

1.  Private  rights  are  in  great  measure  suspended  only  when 
the  preservation  of  the  whole  community,  or  the  necessary  use 
of  the  state  power  for  the  defence  and  protection  of  the 
people,  demands  so  great  an  interference  with  liberty.  But 
it  is  necessary  that  the  just  state  should  restore  the  normal 
state  of  things  as  soon  as  possible.  And  to  this  it  ought  to 
be  added  that  no  crime  is  justified  by  any  extremity  of  self- 
preservation,  such  as  forced  change  of  religion,  or  the  sacrifice 
of  an  innocent  man,  or  the  distribution  of  losses  so  that  they 
shall  not  fall  as  far  as  possible  on  all  alike. 

Private  rights,  as  we  have  seen,  do  not  alloAV  to  the  individ- 
ual to  use  his  rights  in  an  immoral  way.    (Comp.  §81.) 

The  punishment  of  crime  requires  the  suspension  of  one 
or  more  rights  as  long  as  it  continues.  (Comp.  §20  and  ^115.) 

The  prevention  of  crime  cannot  but  interfere  with  the  per- 
fect liberty  of  the  innocent  person,  as  long  as  he  happens  to 
be  under  suspicion  ;  and  general  rules  for  the  safety  of  the 
community  make  it  necessary  to  restrict  the  actions  of  indi- 
viduals at  particular  times  or  in  certain  places. 

In  most  other  cases,  where  attempts  are  made  by  govern- 
ments to  meddle  with  the  rights  without  which  the  work  and 
intercourse  of  the  world  cannot  go  on,  the  government  ought 
to  be  able  to  prove  that  there  is  an  imperative  reason  for 
such  a  restriction. 

2.  The  limits  upon  state  power,  to  prevent  its  tyrannical  ac- 
tion on  individuals,  or  its  partial  and  unequal  action  on  classes 


266  POLITICAL   SCIENCE. 

or  portions  of  the  people,  are  to  be  found  chiefly  in  consti- 
tutions, of  which  we  intend  to  speak  in  another  place.  The 
limits  will  consist  mainly  in  making  certain  actions  unlaw- 
ful and  giving  the  right  of  prosecution  to  those  who  are  mal- 
treated ;  in  distributing  and  dividing  up  power,  so  that  it 
shall  not  be  excessive  at  any  one  central  point,  and  self-gov- 
ernment shall  prevail  all  over  a  country,  with  a  certain  proper 
subordination  of  local  to  higher  officers  ;  and  in  those  liber- 
ties of  the  people  or  of  the  active  people,  which  will  be 
mentioned  under  the  next  head. 

Methods  of  checking  the  central  power,  or  of  having  in- 
stead of  one  supreme  officer  a  great  number,  each  confined 
within  a  small  circle  of  duties,  as  at  Athens  and  other  small 
republics,  in  order  to  make  tyrannical  usurpation  of  power 
difficult, — such  methods  belong  to  practical  politics,  and  are 
suggested  by  the  great  necessity  of  limiting  the  powers  of 
government  in  favor  of  the  people. 

§91. 
3.  The  liberties  and  securities  to  which  a  private  person  has 
Liberties  or  rights  a  title,  and  which  no  just  government  will  with- 

of  the    citizen  in   a  ,  , 

iust  state.  hold,  are  such  as  these  : 

(1)  The  equal  and  righteous  administration  of  justice. 
All  the  members  of  the  state  ought  to  have  the  same  rights 
before  the  courts,  because  justice  in  its  essence  is  no  respecter 
of  persons.  They  ought  to  have  the  same  power  given  to 
them  to  plead  and  maintain  their  causes  in  the  courts  of  the 
country.  It  is  essential  that  these  courts  should  be  such  as  to 
provide  for  impartiality  in  judging  of  law  and  fact ;  that  the 
government  must  have  no  influence  in  any  way  on  the  deci- 
sion ;  that  in  criminal  cases,  the  inquisition  of  a  grand  jury, 
and  the  presentation  of  a  man  for  trial  before  a  court  by  a 
state-officer,  shall  mean  only  that  the  evidence  gives  good 
ground  for  trial  but  carries  with  it  no  presumption  ;  that 
there  should  be  in  such  cases  a  positive  verdict ;  that,  where 
the  government  is  interested,  as  a  party  separate  from  the 
state,  all  provision  be  made  for  a  fair  trial  and  for  all  helps  to 


LIMITS   OF   STATE   POWER.  267 

the  accused  to  make  his  defence  ;  that  no  new  trial  shall  be 
possible  without  new  and  important  evidence  ;  that  the  power 
of  arrest  shall  be  limited,  and  the  arresting  officer  be  responsi- 
ble. Before  trial  the  freedom  of  the  person  must  not  be 
abridged  by  detention  in  a  place  of  confinement,  if  bail  can 
be  furnished,  except  in  those  cases  where  the  forfeiture  of 
bail  would  be  an  inadequate  measure  of  the  alleged  crime  ; 
and  the  time  of  detention  before  trial  must  be  reduced  with- 
in very  narrow  limits.  After  acquittal  no  accusation  or  sus- 
picion ought  to  affect  the  rights  or  status  of  the  person  ac- 
cused. The  reasons  for  these  maxims  of  justice  would  readily 
suggest  themselves,  if  they  were  not  enforced  by  history.  A 
single  instance  of  what  could  happen  in  the  criminal  proce- 
dure of  one  of  the  most  just  of  nations  will  show  how  much 
need  there  is  of  such  securities  for  accused  persons.  Down 
to  the  reign  of  William  III.  no  counsel  was  allowed  in  Eng- 
land to  persons  indicted  for  high  treason,  nor  to  persons  im- 
peached for  the  same  crime  by  act  of  parliament  until  20  Geo. 
II.  ;  nor  for  persons  accused  of  felonies  (except  on  collateral 
facts)  until  6  and  7  William  IV.  (Comp.  Christian's  and 
Stewart's  notes  on  Blackst.  iv. ,  356.) 

The  security  of  the  people  against  wrong  judgments  of 
courts  implies  in  theory  as  well  as  in  practice  the  removal  of 
all  dependence  of  judges  upon  a  government  or  a  community. 
They  must  form  a  separate  department  removed  from  all 
control  of  executive  officers,  and  capable  of  putting  a  stop  to 
illegal  stretches  of  executive  power.  This  arises  from  their 
very  nature  of  an  impartial  body,  appointed  by  some  political 
body,  and  called  to  judge — if  a  country  is  to  have  its  rights 
preserved — over  the  heads  of  political  bodies  and  without 
regards  to  politics,  in  questions  of  fact  and  law,  where  any  bias 
would  be  a  crime.* 

It  would  seem  also  that  if  the  state  is  bound  to  provide  for 
the  administration  of  justice,   this  public  justice  ought  not 

*  Most  of  the  subjects  touched  upon  in  this  section,  are  discussed  at 
length  in  Dr.  Lieber's  Civil  liberty.  See  the  third  ed.,  edited  by 
the  author  of  this  work. 


268  POLITICAL   SCIENCE. 

only  to  be  unbiassed  and  impartial,  but  to  be  rendered  at 
small  cost,  unless  it  should  appear  that  under  the  form  of 
justice  the  complainant  gratified  a  malicious  spirit. 

(2.)  It  may  be  asked  whether  there   are  no  exceptions  to 
seeming  excep-  tli  1  s  equal  and  unbiassed  distribution  of  justice. 

tions;    bankrupt  ...  .       J 

laws.  Inus  it  the  conception  of  a  claim  against  ano- 

ther for  money  due  never  in  itself  wears  out,  what  shall  be 
said  of  the  justice  of  bankrupt  laws  and  of  statutes  of  limi- 
tation ?  As  for  laws  relating  to  bankruptcy,  the  doubt  is  not 
whether  a  person  who  has  been  unfortunate  may  not  begin 
anew,  free  from  his  old  load  of  debt,  after  obtaining  the  consent 
of  his  creditors,  but  whether  the  law  in  spite  of  reluctant 
creditors  may  set  him  free  from  obligation,  not  only  for  a  time 
but  even  after  his  ability  to  pay  his  debts  may  have  been 
recovered.  In  the  United  States  the  constitution  gives  Con- 
gress power  to  pass  uniform  laws  on  the  subject  of  bankruptcy 
throughout  the  Union  ;  but  it  has  been  ruled  that  the  States 
also  can  legislate  on  this  point,  until  their  laws  be  super- 
seded by  a  general  one.  Such  a  law  may  have  or  not 
have  future  conditions ;  it  may  provide  for  a  full,  or  a  tem- 
porary and  contingent,  discharge  of  the  creditor.  A  small 
provision  for  his  family  is  in  accordance  with  the  principle 
already  laid  down  that  the  family  has  a  certain  claim  on  the 
property  of  its  head.  But  to  give  a  full  discharge  and  leave 
future  payment  entirely  to  the  debtor's  conscience  is  a  very 
questionable  proceeding.  How  a  state  ought  to  act  in  ex- 
treme cases  is  another  question.  The  aetad-^seia  or  "shak- 
ing off  of  burdens  "  in  the  time  of  Solon  may  have  been  in- 
evitable. The  Athenians  were  far  from  regarding  this  as  a 
precedent,  if  we  may  judge  from  the  Heliastic  oath  in  De- 
mosthenes (c.  Timocr.,  §  179),  that  they  "would  not  con- 
sent to  the  cutting  down  of  private  debts  nor  to  the  dividing 
up  of  the  land  or  houses  of  the  Athenians."  It  seems  prob- 
able, however,  that  when  a  debtor  there  gave  up  his  property, 
he  was  entitled  to  a  release  from  his  creditors.*  At  Rome, 
on  the  other  hand,  the  most  stringent  law  of  debt  prevailed, 
*  Comp.  K.  F.  Hermann,  iii.,  §  70,  note  3. 


LIMITS   OF   STATE   POWER.  269 

giving  at  one  time  even  the  debtor's  person  to  the  creditor  ; 
nor  does  there  seem  to  have  been  any  essential  change,  until, 
under  the  Roman  emperors,  a  cession  of  property  to  creditors 
exempted  the  debtor  from  imprisonment.  In  English  legis- 
lation the  debtor's  property,  if  he  is  a  trader,  is  put  into  the 
hands  of  commissioners  ;  if  he  has  not  been  fraudulent  or 
grossly  careless,  he  is  allowed  at  least  to  go  at  large  and  to  be 
able  to  enter  into  a  new  business,  and  his  entire  property 
goes  into  the  hands  of  assignees.  If  he  obtains  a  certificate 
of  conformity  to  the  law,  he  is  entitled  to  a  certain  amount 
of  the  proceeds,  after  two  or  three  dividends  have  been  paid 
to  the  creditors. 

It  would  seem  fair  and  just  that,  when  fraud  or  gross  negli- 
gence of  his  creditor's  interests  does  not  enter  into  the  case, 
the  bankrupt's  family  ought  to  have  some  allowance  for  their 
needs,  and  that  no  final  discharge  ought  to  take  place  with- 
out the  concent  of  the  creditors. 

(3.)  Prescription  is  a  means  "  whereby  in  the  course  of 
Prescription  and  time  and  under  certain  determinate  conditions, 

limitation  of  time  as 

to  bringing  suits.  a  person  acquires  a  right  or  is  freed  from  an 
obligation."  Statutes  of  limitation,  after  a  certain  time, 
prevent  a  person  formerly  owning  or  possessing  the  same 
thing  from  bringing  an  action  against  the  present  possessor. 
The  limitations  in  criminal  law,  which  are  analogous,  by 
which  prosecutions  or  a  criminal  charge  cannot  be  brought 
after  a  certain  term,  do  not  concern  us  here.  Now  what  is 
the  justice  of  prescription,  especially  as  it  relates  to  the  title 
of  land  ?  We  may  find  a  reason  for  such  a  rule  in  the  diffi- 
culty of  gaining  evidence,  after  adverse  possession,  for  a 
length  of  years,  and  the  greater  liability  to  deception  in  re- 
gard to  old  titles.  But  this  does  not  apply  to  the  limitation 
of  the  right  of  action  in  respect  to  notes  of  hand  and  book 
debts.  The  common  ground  for  all  limitation  in  private 
right  is  a  practical  one.  The  unlimited  or  timeless  nature  of 
rights  comes  into  conflict — to  use  the  language  of  another, — 
with  the  existence  of  men  in  time,  with  the  constant  change 
of  their  relations  and  the  finite  character  of  their  knowledge. 


270  POLITICAL   SCIENCE. 

Thus  it  is  necessary  even  in  rights  which  are  in  themselves 
unlimited  as  to  time,  to  carry  through  the  principle  that  time 
controls  the  concrete  practical  system  of  jus,  and  can  give 
rights  as  well  as  take  them  away.  The  Roman  law  had  no 
general  notion  of  prescription  or  superannuation  of  rights, 
but  introduced  it  in  special  cases  of  great  importance.* 

(4.)  Another  seeming    violation  of   private    rights    is  the 
Taking  land  for   taking  of  land  for  public  purposes.     An  expla- 
pubiicuses.  nation  of  this   in    ordinary  cases  has  been  at- 

tempted already  in  this  treatise.  (Comp.  §  26,  I.)  Extraor- 
dinary circumstances,  as  imminent  danger,  justify  another 
treatment  of  private  property,  that  of  the  destruction  of 
edifices  in  war  for  stopping  a  fire.  But  wherever  a  commu- 
nity is  benefited  by  a  private  loss,  the  private  person  ought 
to  bear  only  his  fair  proportion,  as  one  of  many. 

§92. 
The  right  of  petition  is  so  universally  acknowledged  even 

in  despotic  countries — at  least  in  its  most  harm- 
Right  of  petition.    ,  ,  .  _  .  .         , , 

less  forms — that  it  seems  at  first  view  hardly  to 
call  for  remark.  It  is  without  question  a  right.  It  is  needed 
especially  under  arbitrary  governments,  where  those  who 
seek  for  redress  have  no  representatives  to  intercede  for  them  ; 
it  is  needed  in  constitutional  representative  governments, 
because  opinions  change,  new  wants  arise,  and  the  represen- 
tative may  act  on  the  base  principle  that  he  represents  a  party 
only.  All  the  people  in  all  countries,  citizens  and  foreigners, 
ought  thus  to  have  free  access  not  only  to  courts  but  to  legis- 
latures and  magistrates,  either  in  reference  to  public  affairs  or 
to  such  as  affect  their  own  industry  or  calling.  Thus,  let  a 
person  know  of  the  misconduct  of  a  subordinate  official,  he 
has  a  right  or  it  is  even  his  duty  to  disclose  it  to  the  head  of 
the  department  ;  or  let  there  be  a  ruling  of  the  chief  finance 
minister  in  regard  to  duties,  the  merchants  concerned  ought 
to  have  the  right  to   make   representations  touching  it.     In 

*  Comp.  Bruns,  d.  heut.   Rom.  Recht,  in  Holtzendorf  s  Encyclop., 
282. 


LIMITS   OF   STATE   POWER.  27 1 

our  country  the  citizen  may  go  farther,  and  remonstrate 
against  an  existing  grievance,  or  a  contemplated  appoint- 
ment ;  and  nothing  is  more  common  than  petitions  in  favor  of 
candidates  for  office.  But  the  right  of  petition  is  generally 
exercised  in  urging  the  legislative  department  to  pass  or  not 
to  pass  a  certain  law  or  bill,  whether  referring  to  private  and 
local  affairs  or  to  measures  of  general  legislation.  Petitions 
may  take  the  form  of  remonstrance  or  of  request ;  it  makes 
no  difference  whatever  the  color  of  the  addresses  or  declara- 
tions may  be,  when  they  are  sent  into  the  legislature  ;  if  re- 
spectful in  form,  they  are  presented  by  some  member  and  form 
a  part  of  the  business.  In  some  few  cases  petitions  have  been 
sent  in — the  propriety  of  which  may  be  questioned — to  the 
chief  magistrate  to  withhold  his  signature  from  a  certain  bill. 

Petitions  have  less  weight  in  this  country  than  in  some 
others — although  the  right  is  secured  by  the  first  amendment 
to  the  constitution — first,  because  the  representatives  think  in 
all  important  measures  that  they  understand  the  opinions  of 
their  districts  better  than  the  petitioners  do  ;  secondly,  because 
all  such  measures  are  judged  of  from  the  standpoint  of  party 
and  not  from  that  of  public  interests  ;  and  thirdly,  because  the 
petitions  themselves  are  known  to  be  often  signed  without 
much  reflection,  on  the  solicitation  of  interested  or  zealous 
persons.*  There  are  in  fact  so  many  other  ways  of  knowing 
what  public  opinion  is,  that  this  way  has  not  the  relative  im- 
portance which  it  once  had  in  affecting  legislation. 

Petitioners  have  no  right  to  appear  in  person  before  a  legis- 
lature ;  their  rights  end  when  they  secure  a  member  of  the 
body  to  present  their  requests.  In  the  first  years  after  the 
French  revolution,  petitioners  were  not  confined  to  the  presen- 
tation of  their  requests  by  a  member  of  the  assembly,  but  were 
suffered  to  come  in  person  within  the  house,  until  disorder 

*  Comp.  Dr.  Lieber"s  Civil  Liberty  and  Self-government,  ed.  3,  p. 
121  and  onw.  See  in  R.  von  Mohl's  Staatsr.,  Volckerr.  u.  Polit, 
i.,  232-280,  an  essay  entitled  "Contributions  to  the  Doctrine  of  the 
Right  of  Petition  in  Constitutional  States,"  which  contains  much 
valuable  matter. 


272  POLITICAL   SCIENCE. 

and  even  crimes  were  committed  by  persons  who  pretended 
to  appear  before  the  assembly  for  this  purpose.  In  the  French 
constitutions  of  1795  and  1799  this  evil  was  checked  by  the 
provision  that  only  single  persons,  and  not  societies,  should 
appear  on  such  occasions.  The  clause  in  the  constitution  of 
the  last-named  year  "  tonte  personne  a  le  droit  (T addresser 
des  petitions  individuclles  "  was  interpreted  to  mean  not  only 
that  the  signature  of  more  than  one  person  was  not  to  be 
affixed,  but  also  that  the  petition  was  to  be  addressed  and  not 
handed  in  by  the  signer. 

Freedom  of  expression  of  thought  and  that  of  meeting  in 
Freedom  of  speech  assemblies  for  this  purpose,  are  two  other  neces- 
and  of  press.  sary  liberties  of  a  people.     This  is  a  wide  sub- 

ject, which  we  cannot  expect  to  exhaust.  There  is  a  general 
agreement  that  liberty  both  in  speech  and  writing  is  to  be 
respected,  and  that  some  restrictions  on  it  are  necessary. 
When  it  is  asked,  however,  what  those  restrictions  are,  there 
will  be  a  divergence  of  opinions,  occasioned  partly  by  the 
condition  of  the  state — whether  the  government  fears  free 
censure  of  its  measures  or  has  no  such  fear,  whether  the  times 
are  revolutionary  or  quiet,  whether  there  is  a  state  of  war  or 
of  peace — and  partly  by  the  difficulty  of  balancing  the  good 
and  the  injury  of  free  expression  of  opinion.  We  will  look 
for  a  moment  at  several  points. 

Public  gatherings,  for  any  purpose,  political  or  other,  are 
defended  by  the  rights  of  individuals  to  express  their  opinions 
and  act  in  concert.  Cases  may  occur  of  processions  blocking 
up  streets  and  preventing  the  ordinary  passing.  Here  the 
authorities  of  cities  have  a  right  to  confine  a  procession 
within  such  bounds  that  it  shall  not  entirely  obstruct  the  way. 
Public  meetings  in  the  open  air  are  not  to  be  prohibited,  un- 
less there  be  danger,  imminent  and  unquestioned,  of  riot ; 
and  even  then,  an  increase  of  a  police  force,  and  other  meas- 
ures of  security,  are  better  than  that  the  elements  of  disorder 
should  be  a  plea  for  preventing  the  exercise  of  an  undoubted 
right.  Street  and  field  preaching,  again,  may  claim  protec- 
tion from  public  authorities,  and  ought  not  to  be  prohibited 


LIMITS   OF   STATE   POWER  273 

on  the  ground  of  exciting  the  ill-blood  of  a  denomination. 
The  wise  course  for  public  authorities,  in  all  cases  where  ex- 
citing questions  are  discussed  in  the  open  air,  is  to  allow  any 
degree  of  intemperate  feeling  which  expresses  itself  in  words 
only,  and  to  be  ready  to  prevent  all  acts  of  violence. 

The  liberty  of  the  press  is  sacred  in  all  free  countries,  as  a 
corollary  from  the  rights  of  free  speech  and  opinion.  It  is 
placed  under  the  same  responsibilities  with  the  right  of  speech, 
in  regard  to  injuries  done  to  a  man's  reputation,  to  incendiary 
appeals  against  a  government  or  a  public  official,  and  to  ob- 
scene or  blasphemous  publications.  Private  rights  and  public 
order  can  no  more  be  injured  with  impunity  by  printed  than 
by  spoken  or  written  words  ;  nor  ought  there  to  be  any  more 
license  given  to  a  political  newspaper  to  charge  an  adversary 
with  crime  than  to  a  speaker  in  a  ring.  Indeed  the  wrong  in 
published  words  is  more  deliberate  and  more  easily  proved 
than  in  spoken  ones.  Here  we  remark,  first,  that  mere  ridi- 
cule, the  putting  of  a  person's  arguments  or  words  in  a  ludi- 
crous light,  or  charging  him  with  discreditable  feelings,  like 
bigotry,  infidelity,  or  hostility  to  religion,  although  immoral, 
are  not  in  themselves,  without  evidence  of  a  particular  malig- 
nant purpose,  technical  injuries,  for  he  can  find  the  support 
of  others  who  think  with  him  and  will  defend  him.  We  recall, 
secondly,  a  remark  already  made  once  before,  that  it  is  rational 
that  the  truth  should  be  adduced  in  defence  against  prosecu- 
tions for  libel,  for  it  is  often  of  great  importance  that  a  man's 
private  character  should  be  known,  and  the  amount  of  confi- 
dence ascertained  which  the  public  ought  to  repose  in  him. 
On  the  other  hand,  this  must  be  done  by  the  publisher  with 
a  rope  round  his  neck,  so  to  speak.  He  can  so  easily  spread 
a  slander  which  a  good  life  cannot  easily  put  down,  as  to  re- 
quire him  to  show  that  he  had  no  malice  in  issuing  the  report. 
Tliirdly,  sober  assaults  on  Christianity  ought  to  be  as  free  as 
sober  controversies  on  any  philosophical  questions.  It  has 
been  attacked  continually  since  Christ  appeared  in  Judaea,  and 
has  spread,  notwithstanding,  by  its  inherent  spiritual  power. 
Why  should  any  believer  be  such  a  coward  as  to  fear  for  it 
18 


2/4  POLITICAL  SCIENCE. 

now,  and  why  should  he  justify  it  for  vigorous  assaults  on 
heathenism  and  infidelity,  while  he  forbids  its  foes  even  to 
stand  up  in  their  own  defence.  The  same  may  be  said  of  the 
advocacy  of  immoral  philosophies,  of  socialistic  vagaries,  of 
extreme  rights  of  revolution,  and  the  like,  if  undertaken  in 
the  sober  way.  Fourthly,  obscene  pictures,  engravings  and 
publications  ought  to  be  prohibited,  on  the  same  grounds  that 
obscene  exposures  of  the  person  and  that  houses  of  prostitu- 
tion are  prohibited.  See  §  80.  Fifthly,  there  ought  to  be 
an  offence  of  a  public  nature,  some  publication,  before  any 
restriction  is  applied.  A  censorship,  even  if  so  restricted  as 
to  touch  only  dramas  that  are  offered  for  the  stage,  rests  on  a 
false  principle.  The  true  principle  is  that  a  person  may  pub- 
lish but  must  take  the  consequences  ;  the  false  principle  is 
that  the  consequences,  being  possible  influences  of  an  immoral 
sort  on  the  minds  of  men,  are  to  be  prevented  by  measures 
which  would  destroy  liberty. 

There  is,  however,  we  admit,  a  point  of  considerable  diffi- 
culty just  here,  relating  to  instigations  through  the  press  of 
criminal  attempts  on  life  or  appeals  against  obnoxious  laws 
commending  their  violation.  Mr.  Mill  (Liberty,  chap,  ii., 
beginning)  rightly  finds  no  reason  for  interference  when  an 
ethical  philosopher  justifies  tyrannicide  in  a  calm  way,  but 
he  holds  that  the  instigation  to  it  in  a  specific  case  ought  to  be 
punishable,  if  an  overt  act  has  followed  and  a  probable  con- 
nection with  the  instigation  can  be  made  out.  A  similar  case 
would  be  the  exhortation  of  a  violent  free-trader  to  evade  the 
provisions  of  a  protective  tariff,  which  can  be  shown  to  have 
led  a  smuggler  to  the  killing  of  an  officer  of  the  revenues. 
Must  we  not  lay  down  this  principle,  that  no  calm,  fair  discus- 
sion, however  atheistical  or  immoral  or  revolutionary  the  side 
it  takes,  ought  to  be  either  forbidden  by  law,  or  be  charged 
with  any  consequences,  which  may  indirectly  and  without  the 
writer's  intention  have  proceeded  from  an  unsettled  brain. 
There  seems  to  be  no  other  rule  possible  unless  we  make  men 
legally  responsible  for  all  the  '  indirect  damages'  which  their 
opinions  or  examples  or  even  silence  may  have  helped  on. 


LIMITS   OF   STATE   POWER.  275 

Just  and  equal  taxation  to  which  the  tax-payer  can  give  his 
assent  through  his  representative  in  the   leeisla- 

tqual  taxation.  i 

tive  assembly,  and  in  the  town  or  municipality 
by  his  own  vote,  is  one  of  the  most  vital  of  all  liberties  in  the 
state.     Taxation  without  representation,  in  the  Anglican  no- 
tion of  liberty,  as  expressed  in  the  Magna  Charta  and  other 
political  instruments,  is  a  gross  violation  of  rights.     The  dan- 
ger, also,  of  inequality  of  taxation  is  very  great,  greater  in  a 
democratic  country  than  in  almost  any  other,  greater  where 
universal  suffrage  has  gained  a  footing  than  in  other  democ- 
racies.    We  have  referred  in  another  place  to  the  danger- 
ous and  arbitrary  power  of  legislatures,  which  is  so  common, 
of  levying  and  appropriating  taxes,  borrowing  money,  help- 
ing public  works,  and  the  like,  without  any  check.     There  are 
communities  in  the  United  States  where   one-half  or  even 
more  of  the  income  of  taxable  property  is  necessary  to  pay 
the  taxes.     In  view  of  the  various  abuses  or  opportunities  of 
oppressing  the  taxpaying  inhabitants  of  a  state  or  town,  we 
first  repeat  a  remark  already  made,  that  it  is  contrary  to  the 
spirit  of  our  liberties,  that  those  who  have  no  taxes  to   pay 
should  have  the  right  of  voting  on  the   budgets  of  towns  or 
cities.      This  would  be  in  times  of  corruption  a  most  terrible 
weapon  in  the  hands  of  demagogues  for  revenging  themselves 
on  the  wealthy  and   getting  the  aid   of  the   lowest   people. 
Secondly,  there  ought  to  be   limits  of  rates  beyond  which  no 
city  authorities   or  town-meeting  should  have  power  to   go 
without  at  least  special    permission  of  the  legislature  ;    and 
limits,  also,  beyond  which  a  legislature  should  have  no  power 
to  enhance  the  state-tax  without  a  very  decisive  vote,  say  of 
three-quarters    of   the    members.      A    necessary   adjunct    to 
this  limitation  would  be  the  check  on  the  power  of  borrowing 
money.     Again,  tJiirdly,  it  is  still  more  just  that  there  should 
be  no    exemptions,   no    untaxable  property, — a  rule  against 
which  numerous  offences  in  time  past  have  been  committed. 
Thus  it   has  been  not   unusual    to   charter  a  bank  paying  a 
bonus  to   the   state,  to  put  the  rate  of  taxation  on  bonds  of 
railroad  companies  lower  than  on  other  property  in  order  to 


27$  POLITICAL   SCIENCE. 

encourage  the  construction  of  such  works,  and  to  exempt  funds 
given  for  eleemosynary  purposes,  church  property,  the  funds 
of  academies,  etc.,  from  taxation.  This  last  exemption  is  far 
more  defensible  than  most  others,  as  it  relieves  the  poor 
from  a  considerable  burden,  and  for  the  most  part  only  changes 
the  list  of  articles  taxed,  while  the  same  persons  upon  the 
whole  pay  the  same  amounts.  But  perhaps  the  rule  of  tax- 
ing all  property  except  that  owned  by  the  government  or 
minor  communities  would  be  most  just  and  advisable. 

There  ought  to  be  no  other  exemptions  or  impositions  of  a 
special  exemptions  special  nature,  as  from  military  service,  or  from 

or  impositions.  •  ••  Tr  •  i •  1-     r      •*_ 

serving  on  juries.  11  age  is  to  bring  relief,  it 
should  apply  equally  to  all.  To  remove  public  burdens  from 
one  rank  that  they  may  fall  the  more  heavily  on  others — as 
heretofore  in  several  countries  the  lands  of  the  nobility  were 
free  of  taxation  on  the  ground  that  they  were  held  to  expen- 
sive military  service — is  to  reduce  the  peasants  to  slavery,  not 
to  say  that  those  who  are  least  protected  and  least  able  to 
bear  the  load  put  on  them  are  most  of  all  oppressed.  And 
so  where  there  is  a  necessity  of  laying  special  burdens  on  a 
community,  they  ought  to  be  equal  as  far  as  may  be,  and 
regulated  by  law  in  such  a  way  that  they  cannot  be  made 
oppressive  on  political  grounds.  The  power  of  quartering 
troops  upon  the  inhabitants  of  a  town  or  district  is  one  of 
those  which  has  figured  largely  in  the  history  of  English 
liberties  ;  it  was  one  of  the  principal  grounds  for  the  peti- 
tion of  right  in  1627,  after  the  southwestern  countries  had 
been  punished  in  this  way  by  the  court.  It  was  regulated  by 
an  amendment  to  the  constitution  of  the  United  States,  after 
the  English  precedent. 

So  also  difference  of  privileges  in  regard  to  the  tenure  of 

land   or  the   marriage  condition,  in    regard  to 

Special  privileges.  .    .      .  ■  < 

the  use  of  courts  and  modes  ot  penalty,  is,  to 
say  the  least,  questionable  on  the  ground  of  justice,  and  ought 
to  be  done  away.  Most  of  these,  where  they  exist,  come 
down  from  feudal  times,  and  once  had  some  political  reason 
to  justify  them,  which  has  now  in  most  countries  become  ob- 


LIMITS   OF   STATE   POWER.  27.7 

solete.  Thus,  entail  ruled  in  respect  to  some  land,  with  suc- 
cession to  the  next  male  in  the  kin,  while  in  respect  to  other 
land  free  testament  or  distribution  among  all  the  children 
was  permitted.  The  prohibition  of  marriage  between  per- 
sons of  different  ranks  in  order  to  keep  the  blood  of  a  nobility 
pure,  to  preserve  a  distinction  between  orders  and  to  prevent t 
confusion  of  rights,  is  an  old  and  natural  device.  The  over- 
throw of  a  separating  wall  between  the  orders  was  one  of 
the  leading  steps  in  Rome  by  which  the  wealthy  plebeian 
families  came  to  a  level  with  the  old  patricians,  and  the  gov- 
erning class  was  essentially  modified.  The  same  separation 
has  run  through  the  law  of  some  modern  states,  and  was 
strictly  enforced,  especially  in  Germany,  leading  to  morganatic 
marriages  and  immoral  alliances.*  In  several  of  the  United 
States  a  prohibition  of  marriage  between  whites  and  persons 
of  color,  so  far  as  it  had  any  effect  beyond  the  natural  dis- 
gust at  such  a  mixture,  produced  similar  licentious  connec- 
tions. The  laws  forbidding  marriage  with  foreigners  were 
intended  either  to  prevent  citizens  from  being  injured  by  for- 
eign influences,  as  at  Athens,  or  proceeded  from  the  old  feel- 
ing of  race,  which  is  still  seen  in  a  multitude  of  inferior 
tribes,  and  gives  rise  to  similar  regulations.  Differences  of 
courts  and  of  penalties  for  the  noble  and  the  common  man 
were  not  intended  to  shield  the  nobleman,  but  sprang  simply 
out  of  aristocratic  feeling.  All  those  distinctions  are  unrea- 
sonable and  unjust. 

$93- 
The  immense  power  given  to   individuals  by  combination, 
_   ,,        ,       and   the    range    of  which  associated    action    is 

The  liberty  of  as-  o 

sodation.    "  capable,  if  allowed  to  have  full  play,  render  it 

an  object  of  just  dread  lest  it  should  interfere  with  the  func- 
tions of  governments  and  even  with  the  powers  of  states. 
It  needs  defence  under  the  laws  from  the  suspicion  which 
may  grow  up  on  this  account ;  and  the  state  must  have  some 
control  over  it,  lest  it  become  an  impcrium  in  imperio.     It 

*  Comp.  Gohrum,  Ebenbiirtigkeit,  Tubing.,  1846. 


278  POLITICAL   SCIENCE. 

may  also  interfere  with  individual  action  and  oppress  its 
weaker  competitors.  We  remark  on  these  points,  first,  that 
what  individuals  may  do  in  any  of  the  industries  of  life,  asso- 
ciations ought  to  be  permitted  to  do  also  ;  and  that  the  facili- 
ties for  encouraging  joint  stock  companies,  which  the  laws  of 
most  modern  states  supply,  are  not  unjust  to  single  individuals 
engaged  in  the  same  branches  of  industry.  If  the  associa- 
tions can  make  their  products  at  a  cheaper  rate,  they  will 
supplant  individuals  ;  if  otherwise,  they  must  give  way  them- 
selves. 

Secondly,  there  are  some  results  of  labor  which  the  single 
capitalist  will  find  beyond  his  means  or  beyond  the  risk 
which  he  ought  to  incur,  or  which  reach  over  a  great  extent 
of  territory.  Here  associations  are  almost  necessary  to  effect 
the  object.  Submarine  cables,  Suez  canals,  railroads  to  the 
Pacific,  would  have  waited  long  for  their  construction,  if  they 
had  been  left  to  individuals  or  even  to  governments.  The 
endowment  of  schools  of  learning,  the  foundation  of  learned 
academies,  the  building  of  churches  in  such  a  country  as  this, 
with  many  other  public  societies,  demanded  the  effort  of 
many  acting  in  concert. 

Thirdly,  associations  must  have  legal  powers  and  responsi- 
bilities, either  under  general  laws  like  most  partnerships  in 
trade,  or  like  manufacturing  companies  with  limited  liabilities 
of  stockholders,  or  with  special  acts  of  incorporations.  There 
are  also  powers  such  as  those  needed  by  companies  for  build- 
ing roads  or  improving  harbors,  which  a  state  alone  can 
grant.  The  right  of  the  state  to  give  grants  authorizing  the 
passage  of  roads  or  canals  across  private  land  is  explained  by 
the  companies  acting  with  delegated  powers,  and  they  are 
bound  to  give  all  reasonable  compensation,  as  the  state  would 
be  bound,  if  it  had  done  the  work  for  itself.  We  add  that 
no  such  company  ought  to  have  any  privilege  by  which  the 
just  claims  of  any  creditor,  whether  public  or  private,  can  be 
evaded. 

Fourthly,  secret  associations,  especially  such  as  have  pass- 
words, initiations,  oaths,  and  can  easily  be  converted  into  in- 


LIMITS   OF   STATE   POWER.  279 

stitutions  hostile  to  the  government  or  constitution,  may 
rightfully  be  placed  under  especial  surveillance.  There  will  be 
the  greater  need  of  this,  if  they  are  spread  in  various  branches 
over  a  large  territory  and  can  act  in  concert  for  gaining  politi- 
cal objects.  It  is  easy  to  understand  that  a  government  not 
secure  or  confident  of  the  attachment  of  the  people  will  not 
endure  them  ;  and  nowhere  in  a  time  of  war  or  civil  strife  ought 
they  to  be  endured.  The  most  free  countries  can  claim  thus 
much— that,  when  called  upon,  the  officers  of  such  clubs  shall 
give  an  account  of  their  proceedings  or  that  officers  of  govern- 
ment shall  have  admittance.  A  club  or  society,  which  has  life 
and  continuance  and  is  suspected  of  political  objects,  makes 
itself  an  enemy  to  the  country  by  its  secrets,  and  may  be 
treated  like  drinking  saloons — be  required  to  give  bonds  for 
good  behavior  or  to  open  its  doors  to  the  police. 

§94- 
It  has  taken  ages  for  the  most  civilized  nations  to  come  to 
the  conviction  that  the  state  ought  not  to  med- 

Liberty  of  worship.  .  ....        .  .    r         ..       ....  .... 

die  with  individual  and  family  belief  and  divine 
worship,  and  that  it  is  iniquitous  to  prevent  public  worship 
of  peaceable  and  orderly  citizens.  The  great  importance  at- 
tached under  Christianity  to  doctrine  and  personal  convictions, 
tended  to  produce  definite  forms  of  faith  and  worship  ;  but 
the  same  cause  acting  on  individual  minds  made  them  investi- 
gate truth  for  themselves,  and  the  spirit  of  religion  led  them 
to  hold  on  to  their  opinions  and  forms  with  unyielding  te- 
nacity. If  uniformity  could  be  produced  by  law,  light  would 
be  excluded  from  the  individual  mind  ;  all  thought  would  be 
in  fetters,  not  only  in  theology  and  religion,  but  in  all  depart- 
ments in  which  the  doctrines  may  conflict  with  those  of  reli- 
gion ;  and  all  religious  institutions  would  be  after  one  pattern. 
But  individual  minds  rebel  against  such  bondage,  and  hence 
the  alternative  of  persecution  even  to  death,  or  of  forced  hypo- 
critical conformity.  It  is  the  conviction  that  the  world  will 
not  bear  such  tyranny  over  thought,  the  protests  of  persecuted 
minorities,  and  the  evident  impotence  of  laws  securing  uniform 


280  POLITICAL   SCIENCE. 

faith  and  worship,  that  have  nearly  broken  up  this  system. 
But  its  injustice  was  long  unfelt  ;  and  sundry  plausible  argu- 
ments for  it,  especially  of  a  political  kind,  triumphed  ;  until 
the  divisions  between  Protestants  and  Catholics  ceased  to  in- 
fluence international  relations,  and  within  Protestant  states 
kindliness  of  feeling  or  indifference  to  religion  broke  up  the 
feeling  that  dissent  ought  to  be  put  down  by  law.  At  pres- 
ent, when  it  is  agreed  on  all  hands  that  the  state  ought  never 
but  in  extreme  cases  to  require  of  the  individual  that  which 
his  faith  and  conscience  condemn,  this  war  between  law  and 
conscience  is  in  great  measure  done  away.  This  change  will 
not  necessarily  involve  the  disestablishment  of  a  national 
church,  provided  full  religious  liberty  is  conceded  ;  and  it  may 
even  be  found  that  churches  which  are  established  will  become 
the  gainers,  by  reducing  their  privileges  within  a  very  narrow 
compass,  and  by  the  entire  abolition  of  laws  prohibiting  in 
any  degree  religious  freedom  ;  for  a  sense  of  wrong  without 
doubt  has  intensified  dissent. 

The  securities  for  this  liberty  of  worship  and  of  conscience 
are  worthy  of  being  engrafted  into  constitutions,  but  at  all 
events  must  be  embodied  in  the  laws  of  a  free  nation. 

It  is  not  enough  that  the  inhabitants  of  a  state  are  secured  in 
their  rights  by  law  as  single  persons  are,  or  even 

Municipal  liberties.  .       . 

as  associations ;  the  keystone  to  this  system  is 
found  in  municipal  franchises,  which  are  at  once  political  and 
private.  That  is  to  say,  if  secured  by  charter  or  constitution 
they  unite  a  body  of  the  people  under  a  self-governing  power 
to  the  state,  and  yet  protect  the  same  body  against  the  state. 
Power  is  given  to  the  people  in  a  righteous  system  to  resist 
unjust  taxation  and  even  to  decide  what  the  taxation  shall  be, 
while  at  the  same  time  they  are  obliged  to  bear  their  burdens. 
Somewhat  so  the  municipality  unites  them  to  the  state  and 
defends  them  against  the  state  ;  it  gives  them  protection  at 
home  and  the  power  of  managing  their  affairs,  enables  them 
to  act  officially  in  concert,  educates  them  to  serve  the  state 
and  to  understand  public  affairs  in  the  wider  sphere,  stimulates 
public  spirit,  secures  distribution  of  power  without  destroy- 


LIMITS   OF   STATE   POWER.  28 1 

ing  unity.  Nor  ought  self-governing  powers  to  be  granted 
to  places  only  where  large  masses  of  men  are  gathered  to- 
gether ;  but  scattered  communities  and  villages  ought  to  have 
them  in  a  form  suited  to  their  peculiar  wants.  And  there  is 
especial  need  that  they  should  have  security  by  law,  because 
with  them  combination  is  difficult ;  so  that  a  grasping  govern- 
ment could  more  easily  strip  them  of  their  franchises  than 
they  could  larger  towns. 


CHAPTER   VI. 

THE  ORGANIZATION  OF    STATES. 

$95- 
It  is  conceivable  that  a  society  of  human  beings  should  re- 
Desire  of  the  or-  main  f°r  some  time  in  an  unorganized  condition. 
futtaimosti>Ltinhc"  If"  the  members  of  it  had  all  reached  the  meas- 
ure of  Christian  manhood,  intercourse  would  be 
without  suspicion,  life  and  property  would  be  safe,  the  social 
virtues  would  all  flourish  :  and,  as  far  as  the  wants  of  the 
society  itself  were  concerned,  there  would  be  little  need  of 
political  institutions.  Something  better  than  the  absence  of 
crime  and  of  fear,  the  positive  control  of  kindness,  justice, 
unselfishness,  would  be  brought  about  by  a  higher  law.  But 
even  then,  we  may  suppose,  there  would  be  a  craving,  a  sort 
of  instinctive  longing  for  political  order  and  unity.  It  cannot 
be  mere  fear  which  makes  constitutions  and  states  to  be  ac- 
cepted ;  mankind  crystallize  into  forms  of  life,  as  substances 
mingled  together  obey  a  law  and  take  a  certain  arrangement 
among  their  particles.  Nor  can  it  be  the  social  instinct  only  ; 
for  this  is  a  blind  tendency,  a  sense  of  loneliness  and  unpro- 
tectedness  outside  of  a  life  in  society.  With  the  tendency, 
the  means  to  secure  the  end,  derived  from  the  simple  forms 
of  existing  life  and  improved  by  experience,  suggest  them- 
selves. In  the  infancy  of  society,  the  family  and  its  offshoots 
determine  what  this  arrangement  shall  be.  When  men  are 
used  to  political  forms  at  a  more  advanced  period,  they 
build  states  as  readily  as  the  beaver  builds  his  dam.  The  set- 
tlers in  one  of  our  new  territories,  although  neither  homo- 
geneous nor  well  instructed  in  politics,  will  have  a  government, 
if  it  is  not  furnished  to  them,  and  will,  for  the  most  part,  copy 
forms  with  which  they  have  been  familiar. 


THE   ORGANIZATION   OF  STATES.  283 

The  organization  of  a  state  consists  of  those  means  or 
agents  by  which  the  work  or  office  of  a  state  goes  on  in  its 
course,  in  conformity  with  a  certain  constitutional  idea.  In 
a  living  organic  body,  the  system  of  organs  is  for  a  certain 
end  or  ends  ;  the  parts  are  for  the  whole,  and  are  also  means 
and  ends  for  each  other ;  and  certain  leading  parts  control  or 
regulate  the  other  parts.  The  moral  organism  of  a  state  dif- 
fers from  natural  organisms  chiefly  in  this — that  the  parts 
have  a  free  agency,  as  well  as  certain  definite  ends  and  rela- 
tions to  one  another  by  their  nature,  which  ends  however 
they  may  neglect  or  wilfully  refuse  to  fulfil.  No  such  organ- 
ism, moreover,  can  subserve  its  true  end,  unless  it  also  sub- 
serves the  end  aimed  at  in  the  creation  of  the  individual  man. 
States  have  not,  like  natural  organisms,  reproductive  powers, 
but  they  aim  in  their  natures  at  permanent  existence — they 
do  not  provide  for  successors.  But  as  individuals,  communi- 
ties, relations  of  property,  religious  beliefs,  and  other  causes 
affecting  the  individual  or  social  interests  of  man  change,  the 
organization  of  a  state  cannot  remain  unaffected,  but  must 
either  submit  to  partial  modifications  or  to  a  complete  over- 
throw. In  either  case,  as  law  and  institutions  generally  con- 
tinue and  bind  the  people  together,  it  cannot  be  said  that 
even  in  times  of  anarchy  the  state  suffers  a  complete  disso- 
lution. 

There  must  in  every  state  be  some  leading  principles  ac- 
constitutionofthe  cording  to  which  the  relations  of  the  organs  and 
state'  functions  of  the  state  are  adjusted  :  work  is  dis- 

tributed, powers  are  assigned  in  such  sort  that  there  shall  be 
as  little  interference  as  possible,  and  all  the  active  powers  of 
the  state  shall  know  their  places.  There  must  also  be  some 
understanding  as  to  what  are  the  relations  of  the  governing 
parts  to  the  governed,  and  what  may  be  done  in  the  exercise 
of  lawful  authority.  There  will  of  necessity,  therefore,  be 
some  limitations  on  the  action  of  the  several  organs,  and  some 
rights  guaranteed  to  the  people.  If  the  judges  could  make  as 
well  as  interpret  laws,  or  the  chief  magistrates  levy  taxes  at  dis- 
cretion, or  decide  cases  in  which  private  persons  had  com- 


284  POLITICAL   SCIENCE. 

plaints  against  the  government,  there  would  be  complete 
confusion  of  functions  ;  and  absolute  power  within  certain 
limits  would  belong  to  one  department,  or  at  least  it  would 
be  easily  usurped. 

The  collection  of  principles  according  to  which  these  powers 
of  government,  rights  of  the  governed  and  relations  between 
the  two  are  adjusted,  is  called  a  constitution.  This  may  be 
a  written  instrument,  or  may  exist  in  the  shape  of  a  number 
of  laws  of  the  first  importance,  or  it  may  have  no  outward 
form  or  expression  further  than  is  given  by  precedents  and 
habits  of  political  acting,  which  have  a  sacred  character  in 
the  minds  of  the  nation.  The  first  of  these  forms  is,  in  matter 
of  fact,  the  most  modern  way  of  adjusting  relations  and  secur- 
ing liberties.  The  second  is  of  greater  antiquity.  Such  a 
constitution  may  be  called,  as  being  not  distinguished  from 
the  laws  in  its  form,  an  uncollected,  or — as  growing  by  suc- 
cessive additions,  according  as  it  was  necessary  to  secure 
some  point  against  the  chief  executive — a  cumulative  consti- 
tution.* Thus  the  petition  of  right,  the  declaration  of  right, 
the  habeas  corpus  act,  may  be  said  to  be  new  statements  of 
rights  conceived  to  have  existed  before,  without  clear  defini- 
tion or  enactments  of  new  rights  by  the  English  parliament 
with  the  consent  of  the  crown.  But  they  resemble  ordinary 
laws  in  this  that  they  can  be  repealed,  without  resort  to 
the  community,  by  some  representative  power.  Instruments 
of  government  in  a  collected  form,  like  our  constitution 
and  many  of  the  newer  ones  of  Europe,  are  generally  more 
difficult  of  alteration  than  ordinary  laws.  Our  constitution  is 
defended  against  hasty  alterations  by  two  provisions — the 
first,  that  amendments  shall  be  proposed  by  two-thirds  of 
both  houses,  or  by  a  convention,  called  by  Congress  on  ap- 
plication of  the  legislatures  of  two-thirds  of  the  several 
states  ;  and  the  other,  that  such  amendments  shall  be  valid 
when  ratified  by  the  legislatures  of  three- fourths  of  the  seve- 
ral states,  or  by  conventions  in  three-fourths  of  them. 

The  third  plan  would,  by  some,  scarcely  be  called  a  consti- 
*This  is  Dr.  Lieber's  term. 


THE   ORGANIZATION   OF   STATES.  285 

tution,  and  it  belongs  to  nations  where  law,  as  distinguished 
from  custom,  hardly  exists.  But  if,  in  the  mind  of  the  nation, 
certain  customs  cannot  be  violated  without  peculiar  guilt,  and 
the  attempt  would  excite  great  commotion  with  the  probabil- 
ity of  being  resisted,  there  is  even  here  a  constitution  to  all 
intents  and  purposes.  It  is  like  family  regulations  which  have 
never  been  written  out,  some  of  which  have  a  trifling  charac- 
ter, others  of  which  are  regarded  sacred  and  inviolable.  We 
shall  have  more  to  say  of  such  constitutions,  when  we  come 
to  the  third  part  of  this  work. 

If  a  constitution,  to  whatever  class  it  belongs,  can  be  inter- 
preted at  pleasure  by  the  executive  or  the  law-making  power 
of  a  state,  it  scarcely  differs  from  any  other  law,  it  is  substan 
tially  modified  by  such  interpretation.  But  cases  come  up 
where  the  question  of  its  meaning  must  be  determined.  Here 
the  safest  way  of  proceeding  is  to  invest  the  supreme  judges 
with  the  same  power  which  they  have  of  deciding  what  the 
lawmakers  intended  by  the  expressions  used  in  any  subordi- 
nate enactment.* 

*  Judge  Cooley,  in  his  "  Constitutional  Limitations,"  quotes  the  fol- 
lowing passage  from  Hurlbufs  Rights  and  their  Political  Guarantees  : 
"  What  is  a  constitution  and  what  are  its  objects?  It  is  not  the  be- 
ginning of  a  community  nor  the  origin  of  private  rights.  It  is  not 
the  fountain  of  law,  nor  the  incipient  state  of  government.  It  is  not 
the  cause,  but  the  consequence  of  personal  and  political  freedom. 
It  grants  no  rights  to  the  people,  but  is  the  creature  of  their  power, 
the  instrument  of  their  convenience.  Designed  for  their  protection 
in  the  enjoyment  of  the  rights  and  powers  which  they  possessed  before 
the  constitution  was  made,  it  is  but  the  framework  of  their  political 
government,  and  necessarily  based  upon  the  pre-existent  condition 
of  laws,  rights,  habits,  and  modes  of  thought.  There  is  nothing 
primitive  in  it  :  it  is  all  derived  from  a  known  source.  A  written 
constitution  is,  in  every  instance,  a  limitation  upon  the  powers  of 
government  in  the  hand  of  agents,"  etc. 

A  constitution  in  free  states  must,  indeed,  be  generally  a  limitation 
on  the  departments  of  government  ;  but  can  we  not  conceive  of  a 
constitution  introducing  despotism,  or  introducing  some  wholly  new 
provisions,  like  that  of  a  responsible  ministry  in  the  modern  consti- 
tutional governments  of  Europe — new,  that  is,  in  the  particular  state 
in  question.  The  idea  of  a  fundamental  law  is  perhaps  that  one 
which  will  form  the  leading  part  of  a  definition  of  a  constitution. 


286  POLITICAL   SCIENCE. 

§   96. 
We  come   now  to  a  question  of  political  morals  which  this 
T   .,  .   F  seems  the  most  fit  occasion  to  discuss.     Is  any 

Is  the  consent  of  J 

the  people  necessary   formal  assent  of  the  individual  necessary  before 

to  give  validity  to  a  / 

he  is  morally  bound  to  obey  the  laws  and  con- 
form to  the  constitution  ?  Or  what  is  meant  by  the  maxim 
that  government  depends  on  the  consent  of  the  governed. 
Does  it  mean  that  a  single  person,  when  he  comes  to  the  age 
of  reflection,  is  free  to  renounce  his  allegiance  to  his  country 
while  he  remains  within  its  borders  ?  If  by  allegiance  we  in- 
tend obligation  to  obey  the  laws,  this  obligation  certainly  can 
never  be  refused,  unless  there  is  some  higher  obligation  re- 
quiring disobedience,  for  to  admit  such  a  rule  would  destroy 
all  order  and  confidence.  The  society  would  not  consent  to 
it  without  ruining  itself,  and  this  consideration  alone  ought  to 
make  the  individual  feel  that  he  cannot,  in  this  respect,  act  as 
he  chooses.  Or  is  it  said  that  a  man  may  leave  his  country 
to  avoid  a  bad  or  hated  government,  without  opposing  the 
law  of  duty?  This  may  freely  be  admitted.  "When  they 
persecute  you  in  one  city  flee  into  another."  But  of  what 
use  is  this  as  a  general  principle  ?  Ninety-nine  out  of  a  hun- 
dred are  tied  up  in  the  community,  and  cannot  leave  it  if  they 
would.  Or,  again,  is  it  meant  that,  as  I  have  given  no  ex- 
press consent — having  taken  no  oath  of  allegiance,  or  free- 
man's oath,  as  we  call  it,  to  the  constitution  and  laws,  there 
is  nothing  but  expediency  to  determine  whether  I  shall  obey? 
I  am  under  no  moral  rule.  But  this  will  not  stand  in  ethics. 
Unless  I  have  made  up  my  mind  that  the  government  or  the 
state  ought  to  be  destroyed,  that  I  ought  to  attempt  a  revo- 
lution, the  duty  to  obey  the  laws  continues,  whether  I  have 
made  a  formal  promise  so  to  do  or  not.  It  is  the  obligation 
that  calls  for  the  promise,  not  the  promise  that  creates  the 
obligation.  Or,  again,  will  it  be  said  of  a  wJiolc people,  that 
a  constitution  which  they  have  had  no  hand  in  making  im- 
poses on  them  no  obligations,  unless  they  give  each  one  for 
himself  a  voluntary  adhesion  to  it  ?     This  is  the  form  which 


THE   ORGANIZATION   OF   STATES.  287 

the  maxim  under  examination  perhaps  most  frequently  takes. 
It  would  logically  follow,  from  the  dogma  that  the  validity  of 
a  constitution  depends  on  the  consent  of  the  people,  or  of  a 
majority,  that  when  a  majority  of  those  who  first  gave  their 
assent  should  have  ceased  to  live,  the  question  should  be  sub- 
mitted again.  (Comp.  •§  68.)  It  would  follow  also  that  the 
common  provision  of  our  American  constitutions,  requiring 
a  two-thirds  vote  to  change  them,  is  against  the  sovereignty 
of  the  people,  who  have  no  right  to  impose  such  a  restriction 
on  their  successors.  It  might  be  that  a  majority  wanted  a 
change,  but  not  two-thirds,  and  so,  until  the  end  of  time,  the 
prevailing  will  might  be  constitutionally  defeated.  It  would 
follow,  further,  that  wherever  there  has  never  been  a  submis- 
sion of  the  constitution  to  the  people,  as  in  Russia,  and  in- 
deed, probably  never  will  be,  as  long  as  the  form  of  govern- 
ment continues,  no  allegiance  ought  to  be  demanded,  because 
the  moral  premises  for  it  have  failed.  A  theory  that  would 
unsettle  all  governments,  the  most  popular  as  well  as  the 
most  despotic,  must  have  some  flaw  in  it.  The  supreme  im- 
portance of  state  law  and  state  authority  must  impose  an 
obligation,  whether  special  assent  is  asked  or  not  ;  must  im- 
pose this  on  the  foreigner  while  he  resides  in  a  country,  and 
on  the  young  man  before  he  enters  into  the  civil  relations  of 
life.  The  necessity  of  the  state,  the  ends  aimed  at  by  the 
state,  are  so  essential  for  all  order,  that  whether  I  like  the 
form  under  which  I  live  or  not,  I  must  obey  the  law  and  de- 
fend the  state.  This  must  continue  until  things  get  to  be  so 
bad  that  in  the  deliberate  judgment  of  the  community,  as  far 
as  can  be  ascertained,  or  at  least  of  the  wisest  and  best  mem- 
bers of  it,  it  will  pay  the  cost  to  attempt  a  change  by  persua- 
sion or  force.  Then,  if  ever,  is  the  time  for  incorporating  in- 
to the  form  of  the  state  the  principle  of  popular  sovereignty. 
The  ethical  question  of  the  right  of  revolution  we  intend  to 
consider  by  itself  erelong.  Meantime  we  may  lay  it  down  as 
a  sound  moral  rule  that  the  right  of  a  state  to  act  as  a 
state  does  not  depend  on  its  being  a  constitutional  state  or 
having  any  particular   form   of  polity,  but   on  its   doing  the 


28S  POLITICAL   SCIENCE. 

work  and  fulfilling  the  ends  of  a  state  in  some  tolerable 
measure. 

$  97- 
What  the  form  of  government  must  be  in  order  best  to  se- 
No  form  of  govern-  cure  the  ends  of  government,  to  establish  the 

ment   indicated    by  .....     .  -     ,  . 

the  theory  of  politics,  political  rights  of  the  people,  to  give  to  the  ex- 
ecutive the  requisite  strength  as  acting  for  the  people,  and  to 
put  such  checks  on  the  executive  as  they  cannot  evade,  it  is 
not  the  province  of  a  theory  of  the  state  to  determine.  The 
theory  requires  that  there  be  an  organized  power  capable  of 
resisting,  in  a  constitutional  way,  the  growth  of  the  power  of 
the  executive  to  the  loss  of  popular  liberty,  but  how  this  shall 
be  brought  about,  it  is  unable  to  tell.  Theory  requires  that 
there  shall  be  as  few  clogs  on  individual  development  as  pos- 
sible consistently  with  national  strength,  but  leaves  particu- 
lars to  experience  ;  and  experience  itself  gropes  and  blunders, 
until  it  gains  from  knowledge  of  the  past  sagacity  in  judging 
of  institutions.  Theory,  again,  begins  to  turn  into  well- 
digested  science,  long  after  states  are  moving  on  their  track 
under  the  control  of  unobserved  historical  causes,  when  al- 
ready practical  problems  are  mixed  with  theoretical  in  such  a 
way  that  theory  alone  would  be  a  very  unsafe  guide.  Again, 
a  people  has  been  unused  to  self-government,  it  has  a  very 
obscure  idea  of  what  it  wants,  and  is  not  aware  how  much  it 
ought  to  claim  ;  how  obvious  in  such  a  case  is  its  incapacity 
to  assert  its  rights  and  liberties,  or  to  demand  liberties  and 
securities  from  a  government.  A  people,  also,  will  have  in- 
stitutions, under  which  it  has  grown,  and  to  which  it  is  at- 
tached, which  are  not  all  consistent  with  public  liberty.  Here, 
for  a  time,  theory  cannot  be  applied,  because  it  would  pro- 
voke the  resistance  of  a  strong  force. 

In  accordance  with  these  remarks  the  question  of  the  form 
of  the  government  is  to  be  debated  outside  of  the  region  of 
theory,  and  to  be  decided  chiefly  upon  practical  considera- 
tions. A  government  which  might  be  the  best  in  an  intelligent 
society,  where  there  was  but  little  inequality  of  life,  would 
have   no  stability  under  conditions   of  another  kind.       The 


THE   ORGANIZATION   OF   STATES.  289 

point  that  ought  to  be  kept  in  view  is  not  what  is  absolutely, 
but  what  is  relatively,  the  best  form  of  the  state  ;  and  when 
changes  are  contemplated,  men  ought  to  ask  not  whether 
these  will  lead  towards  a  constitution  framed  on  approved 
rules,  but  whether  they  will  remedy  and  provide  against 
evils  tangible  and  actual ;  whether  there  is  anything  in  the  in- 
stitutions, such  as  ranks  and  tenure  of  property,  or  in  the  local 
divisions,  in  the  national  feeling,  in  old  habits  and  existing 
religions,  which  will  thwart  or  overthrow  changes  otherwise 
desirable.  We  have  said  in  another  place  that  even  rights, 
which  in  themselves  demand  immediate  and  perpetual  recog- 
nition, may  have  to  wait  for  their  full  establishment  until  the 
spirit  of  a  people  shall  comprehend  them  better.  So  it  is 
with  the  chief  power  in  the  state,  with  ranks  and  orders — as 
far  as  they  are  consistent  with  liberty — and  the  removal  of 
some  abuses.  In  regard  to  kingly  government  there  are  few 
thinking  men  in  this  democratic  country  who  would  go  so  far 
as  to  say  that  it  is  bad  in  itself,  or  may  not  be  the  best  form 
for  a  certain  people  in  a  certain  age.  We  can  look  on  a 
nobility  as  capable  of  being  a  breakwater  against  the  arbi- 
trary power  of  the  sovereign,  and  can  acknowledge  that  the 
nobles  in  the  land  of  our  fathers  secured  freedom  for  the  un- 
titled citizens  as  well  as  for  themselves.  We  look  on  our  own 
government  as  a  necessary  historical  growth  ;  without  a 
noble  class,  removed  from  the  king  and  governing  ourselves 
with  the  ultimate  appeal  to  the  sovereign  in  council,  distri- 
buted among  a  number  of  colonies  acting  apart,  we  were  led, 
almost  of  course,  into  a  confederation  of  democratic  states  ; 
and  this  is  the  strongest  plea  that  can  be  made  for  our  right 
to  exist  as  a  separate  people.  But  we  freely  admit  that 
others  might  not  be  able  to  follow  us  without  incurring  more 
risk  than  we  took  on  ourselves  ;  nay,  further,  that  a  change 
towards  democratic  self-government  may  be  a  great  curse  for 
some  nations,  as  leading  inevitably  to  a  tyranny.  But  with 
these  practical  persuasions  we  claim  that  every  unjust  in- 
stitution, all  inordinate  power  everywhere,  everything  that 
makes  social  life  and  private  liberties  insecure  and  precarious, 
19 


2Q0  POLITICAL   SCIENCE. 

ought  to  be  done  away  with  in  the  utmost  haste  that  is  consist- 
ent with  national  peace  and  the  maintenance  of  the  reforms 
themselves. 

Another  remark  relates  to  the  sway  that  theory  itself  may 
come  to  have  over  the  national  mind.  The  earliest  govern- 
ments grew  up  to  a  great  extent  without  reflection  on  the 
people's  part,  and  with  no  idea  of  national  destiny.  But  as 
time  runs  on,  a  theory  of  personal  rights  starts  up  and  obtains 
a  hearing  from  multitudes,  so  that  it  may,  through  the  means 
that  opinion  has  in  modern  times  for  diffusing  itself,  get  firm 
possession,  at  length,  of  the  controlling  forces  in  society. 
This  faith,  which  lay  outside  of  the  political  causes  appreciable 
by  ancient  philosophers,  must  be  taken  into  account  now. 
What  are  the  political  sentiments — we  have  to  ask — which 
are  moving  among  a  people  ?  What  is  their  doctrine,  true 
or  false,  touching  political  rights,  and  their  estimate  of  their 
present  institutions  as  affecting  their  rights  ?  Have  they  any 
historical  ties  to  old  institutions,  or  have  old  habits  given 
way  to  a  philosophy,  so-called,  which  brings  abstractions 
into  the  place  of  the  political  sentiments  held  by  their  fathers  ? 
Such  new  causes  in  the  world  as  these  must  be  weighed  and 
watched  ;  but  the  question  here  is  not  the  truth  of  the  theory, 
but  whether,  becoming  a  faith,  it  will  of  itself  lead  to  new 
political  demands  from  a  people,  or  will  help  a  sense  of  poli- 
tical wants  towards  some  definite  goal. 

§98. 
Dismissing,  therefore,  the  subject  of  forms  of  government, 
Departments  of   as  not  determinable  by  theory,  we  pass  on  to 
government.  say  t}iat:j   as   it    seems   to   us,  the  division    into 

somewhat  independent  departments  is  demanded  by  theory 
as  well  as  by  practical  considerations.  Of  one  department 
and  the  necessity  for  its  entire  independence  and  removal  from 
all  biases — the  judiciary — we  have  spoken  already.  Nor 
will  our  conclusion  be  overthrown  by  the  fact  that  in  many 
nations  justice  has  been  put  in  the  hands  of  the  chief  ruler, 
and  in  democracies  has  sometimes  been  regarded  as  emana- 


THE   ORGANIZATION   OF   STATES.  291 

ting  from  a  body  of  citizens  who  brought  all  their  political 
feelings  into  the  court-houses.  Supposing  the  king  or  the 
people  ought  to  have  the  power  of  appointing  judges,  this  is 
far  from  proving  that  either  of  them  ought  to  judge  in  person  ; 
and  the  probability  that  they  would  step  aside  from  the  law 
and  facts  of  a  case  shows  the  danger  of  entrusting  the  admin- 
istration of  justice  to  the  leading  element  in  the  state.  And 
yet  in  small  communities,  where  usage  and  precedent  decides 
everything,  there  can  be  little  harm  in  this,  for  all  trials  are 
public,  the  relations  of  life  are  simple,  and  injustice  is  likely  to 
meet  a  speedy  rebuke. 

For  a  special  department,  the  function  of  which  is  to  make 
„,     .        . .      laws,  there  was  no  need  in  the  early  stages  of 

I  he    law-making  '  J  ° 

department.  human  society,  where  the  natural  sense  of  equity 

was  expressed  in  customs  and  usages,  where  for  ages  there 
may  have  been  little  change  in  the  relations  of  human  society, 
and  no  new  opinion  demanding  change  ;  and  where  usage 
itself  must  often  have  yielded  to  equity,  as  determined  by 
the  circumstances  of  each  particular  case  on  which  the  king 
or  judge  was  called  to  decide.  We  may  lay  it  down  as  nearly 
certain  through  a  long  period  for  a  distinct  law-making  de- 
partment to  exist  ;  the  knowledge  of  the  law  was  in  the  hands 
of  a  ruler  and  his  councillors  ;  the  people  or  elders  decided 
cases  under  their  advice.  The  codification  of  laws,  which 
history  discloses  to  us  in  different  parts  of  the  world,  seems 
to  mark  an  epoch  when  society  had  begun  to  be  complicated 
in  its  relations,  when  the  old  rude  justice  no  longer  sufficed. 
In  later  ages  the  function  of  law-making  has  been  seldom 
assigned  to  a  distinct  body  over  which  no  control  of  some 
other  power  of  the  state  was  not  exercised. 

In  modern  times  the  legislative  power  is  eminently  that 
which  represents  the  people  of  the  state  and  keeps  the  magis- 
trate within  the  constitution.  This  power  it  has  acquired  in 
nearly  all  Christian  countries,  and,  while  aiming  to  secure  the 
liberties  of  a  people,  has  need  itself  to  be  under  the  control 
of  a  constitution.  A  legislature  that  is  omnipotent,  with  no 
active  check  of  a  king  or  chief  magistrate  upon  it,  threatens 


292  POLITICAL   SCIENCE. 

to  become  an  aristocratical  or  demagogical  assembly  of 
tyrants.  Kant,  in  his  Rechtslehre  (§  45),  regards  this  as  the 
supreme  power  in  the  state.  "  Every  state,"  he  says,  "  con- 
tains in  itself  three  powers,  that  is,  the  general  will  united  in 
a  threefold  person  (a  trias  politico)  ;  the  sovereignty  {lierr- 
scJicrgewalf)  in  the  person  of  the  lawgiver  ;  the  executive 
power  in  that  of  the  ruler  (according  to  the  law),  and  the 
power  of  administering  justice,  or  the  assignment  of  his 
own  to  each  one  according  to  the  law,  in  the  person  of  the 
judge  ;  the  potestas  legislatoria,  rectoria>  ct  judiciaria" 
which  he  fancifully  compares  to  the  major,  minor,  and  con- 
clusion of  a  syllogism.  It  is  true  that,  in  a  government  by 
law,  the  law  is  the  supreme  moral  force,  and  so  the  legislative 
power  the  supreme  authority,  as  far  as  the  moral  sway  of  the 
law  extends;  but  if  we  measure  power  by  capacity  to  effect 
purposes  and  carry  out  will,  the  executive  chief,  if  he  be  a 
monarch,  is  more  deserving  of  the  name  of  supreme  in  the 
state  than  the  legislature.  For  the  executive  generally  has 
a  check  on  the  passage  of  laws  ;  he  or  it  is  always  at  the 
post  of  active  service,  while  the  legislature  sits  but  part  of  the 
time,  and  has  at  its  control  no  armed  forces.  A  judiciary, 
except  in  the  province  of  explaining  political  laws  and  trying 
cases  when  the  state  is  a  party,  is  less  of  a  political  body 
than  the  two  other  departments. 

Law  being  the  rule  of  action  for  all,  must  be  known  to  all. 
Yet  it  is  impossible  that  all  should  know  it  or  fully  understand 
it  if  it  were  made  known.  The  rule  ignorantia  legis  ncmi- 
11  an  excnsat  is  just  only  where  it  can  be  shown  that  a  person, 
with  proper  anxiety  to  discover  what  is  his  duty,  had  made 
no  attempt  to  do  this,  or  where  his  own  moral  sense  should 
have  taught  him  that  the  act  in  question  was  one  which  in- 
jured the  community.  Where  small  trespasses  are  com- 
mitted and  it  could  not  be  presumed  that  the  offender  would 
have  the  requisite  knowledge,  all  due  allowances  ought  to  be 
made. 

To  a  great  extent  laws  when  passed  are  left  to  some  execu- 
tive officer  to  be  enforced.       It  oueht  to  be  their  business 


THE   ORGANIZATION   OF   STATES.  293 

to  give  information  or  warning  before  small  offences  are  no- 
ticed, and  the  same  is  true  when  an  obsolete  law  is  revived. 

Laws  passed  after  the  offence  which  they  punish,  ex  post 
facto  laws  so-called,  which  are  to  be  distinguished  from  cer- 
tain other  retrospective  laws,  seem  to  violate  plain  principles 
of  justice.  The  power  to  pass  retroactive  laws,  except  for 
remedying  unjust  legislation,  ought  to  be  limited  ;  and  that  of 
suspending  the  action  of  law  is  a  dangerous  one  to  be  given 
to  an  executive.  It  would  seem,  from  the  means  which  an  ad- 
ministration has  of  knowing  the  need  and  the  results  of  legis- 
lation, that  the  veto  (qualified  or  suspensive)  or  some  similar 
constitutional  check  is  demanded  in  the  interests  of  legislation 
itself. 

It  is  plain  that  a  legislature  or  body  occupied  with  passing 
Executive  depart-  laws  cann°t  execute  them,  and  that  the  two 
ment-  functions  of  government  ought  to  be  kept  dis- 

tinct. The  office  of  the  judge  considers  law  and  penalty  as 
already  existing,  and  looks  at  infractions  as  having  taken 
place.  That  of  the  lawmaker  is  concerned  with  making  laws 
which  are  to  regulate  all  conduct  within  the  sphere  of  law  for 
the  future.  Whether  a  law  already  exists  or  not,  what  its 
meaning  is,  it  is  not  their  province  to  find  out.  The  execu- 
tive department  looks  at  law  as  existing  both  for  the  officials 
and  the  people,  and  its  work  is  to  preserve  the  law  from  being 
broken  in  individual  cases  by  such  active  measures  as  they, 
under  the  constitution  or  by  the  law,  are  required  to  take. 
This  department  is  eminently  political.  The  judiciary  is  in 
the  main  jural.  The  legislature  has  to  do  with  all  the  interests 
of  the  country  of  every  sort. 

§  99. 
Multitudes  of  small  states  have  existed  where  citizens  in- 
a  representative    vested  with  full  rights  met  in  mass  for  political 

government.  i  ,  .  ,, 

purposes  ;  but  a  large  state  cannot  secure  the 
interests  of  justice,  freedom,  and  union,  without  a  system  of 
representation.  If  a  city  or  centre  of  population  collects  the 
people  there   in  a  popular   assembly,  the  outlying  districts, 


294  POLITICAL   SCIENCE. 

having  no  active  share  in  the  government  of  the  state,  will  be 
apt  to  fall  into  the  condition  of  serfdom,  or  at  least,  while 
enjoying  municipal  rights,  to  be  shut  out  from  the  larger  po- 
litical sphere.  The  ancients  never  fully  reached  this  thought 
of  political  representation,  which  brings  with  it  various  other 
improvements  in  the  framework  of  a  state,  and  is  indeed  the 
most  important  political  device  of  modern  times.  A  repre- 
sentative carries  with  him  the  political  rights,  powers,  and 
duties  of  those  who  have  constituted  him  such.  He  differs 
from  a  deputy  who  is  assigned  to  do  certain  specific  duties 
for  his  principals,  and  cannot  rightfully  deviate  from  his  in- 
structions. He  is  thus  untrammelled  in  theory  by  any  orders 
from  his  constituents,  and  can  act  at  his  discretion  according 
to  the  light  which  he  gathers  in  an  assembly  composed  of 
similar  persons.  It  is  evident  that  a  legislature  so  composed 
implies  a  certain  degree  of  union  already  in  a  country,  and  is 
a  means  of  cementing  it  further.  It  could  not  exist  in  a  loose 
confederation  (a  '  staatenbund')  nor  in  the  feudal  kingdoms, 
where  the  barons,  bishops,  and  towns  had  legislative  power, 
to  a  great  extent,  within  their  respective  territory,  where  they 
met  the  king  by  their  emissaries  for  certain  specific  purposes, 
where  they  were  estates  while  as  yet  there  was  no  state.  The 
idea  of  the  political  representative  may  have  come  from 
gatherings  of  clergy  in  the  districts  or  dioceses  of  the  early 
church  ;  for  the  feeling  of  unity,  and  of  common  interests 
was  there  rendered  necessary  by  the  nature  of  the  Christian 
religion,  as  yet  one  in  its  outward  form. 

Some  of  the  benefits  of  a  representative  system,  besides 
that  great  one  of  making  large  free  states  possible  and  pro- 
moting union  among  the  parts,  are  first,  that  legislation  is 
more  orderly.  In  the  city-states  the  people  could  meet  to- 
gether for  a  short  time  only,  many  could  not  be  in  the  eccle- 
sia  or  comitia  at  all,  and  these  were  generally  such  as  were 
most  needed  there,  the  men  of  business,  the  political  officers 
abroad  on  service,  the  people  outside  of  the  city  walls.  It 
was  necessary,  in  order  that  the  work  of  the  day  should  be 
finished,  that  they  should  be   in   a  hurry.     What  we  see  in 


THE   ORGANIZATION   OF   STATES.  295 

representative  systems,  that  a  great  deal  of  time  is  given  to 
talking,  was  true  there  without  time  enough  to  do  the  talking. 
So,  perhaps,  men  were  tired  out  and  went  away  before  the 
decisive  action  took  place.  /Eschines  says  that  Demosthenes 
contrived  to  have  a  most  important  preparatory  ordinance 
of  the  Athenian  senate  brought  before  the  ecclesia,  "  when 
it  had  already  risen,  and  when  yEschines  and  most  others  had 
left  the  meeting  " — an  exaggeration  or  a  falsehood,  perhaps, 
but  like  the  truth  (in  Ctes.,  §40,  p.  412,  ed.  Taylor).  Add 
to  this  the  excitement,  often  intense,  that  prevails  in  a 
thronged  assembly,  especially  when  party  feeling  runs  high. 
Still  another  advantage  is  that  the  representative,  having  a 
trust  committed  to  him,  feels  his  responsibility  far  more  than 
the  citizen  would  in  the  primary  assembly.  And  yet  again, 
the  wisdom  of  the  community  is  best  represented  in  the  legis- 
lative halls,  and,  on  the  whole,  a  superior  class  of  men  will  be 
sent  there  than  those  are  apt  to  be  whose  peculiar  talent 
consists  in  governing  a  popular  meeting. 

If  all  the  active  citizens  of  a  country  could  be  collected  in 
Relation  and  dut  a  Pontical  assembly,  the  right  of  deliberating 
of  a  representative.  an(j  0f  deciding  would  belong  to  all  ;  and  all, 
severally,  would  be  morally  bound  to  decide  according  to 
their  judgment  as  to  what  the  greatest  common  welfare  of  the 
political  body  demanded.  When  representatives  meet  in  a 
body,  they  represent  these  same  powers  of  deliberating  after 
discussion,  and  of  deciding  in  conformity  with  the  good  of  the 
whole.  The  system  then  is  not  a  device  for  finding  out  what 
the  separate  interests  of  each  district  returning  a  member  is, 
but  mainly  for  finding  out  what  the  good  of  the  whole  state 
is,  and  then,  in  subordination  to  the  general  good,  of  pro- 
moting that  of  each  part.  Each  representative  is  to  consider 
the  whole  state  first,  and  then  each  part  of  the  state  as 
far  as  its  apparent  welfare  does  not  collide  with  that  of  the 
whole.  He  can,  therefore,  lawfully  place  himself  under  no 
pledges  nor  receive  any  instructions  which  are  binding  upon 
him  ;  for  to  do  so  would  imply  that  he  is  bound,  after  being 
convinced  that  the  general  good  requires  a  certain  course,  to 


296  POLITICAL   SCIENCE. 

take  directly  the  opposite.  It  would  place  the  citizens,  who 
cannot  know  the  reasons  which  appear  after  full  deliberation, 
in  the  position  of  giving  orders  to  one  who  has  carefully- 
listened  to  the  deliberation,  and  of  controlling  his  actions, 
although  they  ought  to  be  of  the  same  mind  with  him, 
and  although  he  was  sent  to  the  assembly  to  find  out  what 
was  best  and  to  vote  after  deliberation  upon  that  conviction. 
It  would,  in  fact,  be  deducible  from  the  same  premises  that 
the  representative  is  bound  to  follow  the  will  of  his  constitu- 
ents in  all  cases  whatever,  only  with  more  certainty  when 
they  give  him  direct  instructions,  with  less  when  they  do  not. 
And  thus  it  would  follow  also  that  deliberation  is  a  mere 
farce,  and  that  the  great  power  actually  put  into  the  hands 
of  the  representative  to  vote  as  he  thinks  best  ought  to  be 
abridged.  Considerations  drawn  from  the  welfare  of  the 
whole  country  ought  not,  it  would  logically  follow,  to  be 
urged  in  such  assemblies  unless  for  the  purpose  of  referring 
them  back  to  the  constituencies,  and  the  main  point  for  each 
member  ought  to  be  to  persuade  his  fellows  that  the  latter 
misapprehended  the  wishes  of  those  who  delegated  them. 
Thus  this  theory  of  the  relation  cuts  up  a  state  into  atoms, 
puts  will  in  the  place  of  conviction  enlightened  by  argument, 
and,  if  its  principle  were  carried  out,  would  make  constant 
reference  from  agent  to  principal  necessary.  Hence  it  is  the 
duty  of  the  representative,  as  derived  from  his  responsibili- 
ties and  powers,  at  times,  to  oppose  his  constituents'  will  ; 
and  to  do  so  may  be  the  highest  act  of  political  integrity, 
since  the  temptation  for  him  is  to  do  just  the  contrary,  that 
is,  to  keep  their  favor  by  following  and  not  by  leading  them. 
By  what  rule  should  representation  be  apportioned  ?  The 
Representation,  ordinary  answer,  from  which  I  should  not  dissent, 
rule  or  principle  of.  wouid  be  according  to  territory,  that  is,  not  by 
any  rigidly  mathematical  rule,  but  so  that  all  parts  of  the  ter- 
ritory may  have  some  responsible  voice  to  speak  for  them 
in  the  national  assembly.  In  carrying  out  this  rule  it  would 
probably  seem  more  just  to  give  dense  populations  less,  and 
sparse  ones  more,  than    their   arithmetical  share.      For  the 


THE   ORGANIZATION   OF   STATES.  297 

latter,  consisting  ordinarily  of  tillers  of  the  land,  are  less  able 
to  unite,  and  to  bring  a  force  to  bear  on  the  general  assembly.* 
A  theory  of  the  representation  of  interests  was  advanced 
by  Mr.  Calhoun,  the  motive  of  which  is  sufficiently  appa- 
rent from  the  political  course  of  that  distinguished  man  and 
from  the  essay  itself  (Calhoun's  works,  i.,  first  part).  The 
thoughts  may  be  put  into  a  general  form,  thus  :  In  extensive 
countries  there  will  be  predominant  interests,  confined  to 
particular  parts,  which  may  be  made  seriously  to  suffer  from 
rival  interests  confined  to  other  parts.  Thus,  agriculture  will 
suffer  from  the  laying  of  a  protective  tariff,  foreign  commerce 
from  the  same  cause.  The  prevailing  interest  will  control 
the  government,  appoint  the  judges,  interpret  the  constitution, 
and  strengthen  itself  by  government  resources  more  and 
more.  Against  this  oppression  some  kind  of  protection  is 
needed,  so  that  a  part  of  a  country  shall  not  wither  by  means 
of  law  made  for  the  benefit  of  another.  Thus,  in  England 
there  was  a  jealousy  between  the  manufacturing  and  the  ag- 
ricultural interests,  which  latter,  by  the  legislation  on  the 
corn  laws  in  1S46,  finally  ceased  to  be  the  leading  and  fa- 
vored interest  of  the  country,  as  among  us  the  domestic 
manufacturers  have  secured  for  themselves  protection  at  the 
expense  of  all  consumers.  It  is  reasonable  and  right  that  all 
parts  and  interests  should  be  protected  alike,  and  this  rule 
would  properly  overthrow  all  protection  by  discriminating 
duties  altogether.  But  I  cannot  see  how  any  great  interests 
that  are  not  local  but  diffused,  or  how  such  smaller  interests 
as  employ  great  amounts  of  capital  and  labor  within  a  narrow 
territory,  could  be  provided  for  in  representation,  especially 
if  a  country  had  not  reached  a  tolerably  fixed  industrial  con- 
dition. Nor  could  the  still  smaller  interests,  so  numerous 
yet  independent,  be  taken  into  account.  The  result  must  be 
a  compromise  between  one  or  two  local  industries,  which 
would  satisfy  no  theory  and  raise  discontent  in  the  unpro- 
tected. 

*  Comp.  Mr.  E.  A.  Freeman's  Histor.  Essays,  2d  Series,  p.  265,  note. 


293  POLITICAL   SCIENCE. 

The  rule  that  the  majority  shall  govern  is  taken  by  some  as 
Representations  of  a  maxim  of  essential  justice,  whereas  it  is  simply 
a  means  of  making  business  move  forward.  As 
we  have  before  remarked,  the  rule  requiring  two-thirds  for 
various  political  ends — as  for  making  or  altering  constitutions, 
overcoming  vetoes  and  the  like — does  prevent  a  majority  from 
carrying  its  points.  The  philosophers,  who  build  up  society 
on  a  social  contract,  make  the  social  pact  unanimous,  but  de- 
termine everything  afterward  by  the  rule  of  the  majority. 
We  never  can  be  sure  whether  all  the  members  of  a  commu- 
nity who  do  not  or  cannot  vote  would  side  with  the  majority 
or  not.  In  elections,  where  majorities  are  required  in  each 
district,  the  candidate  of  the  minority  on  the  whole  may  be 
elected.  Thus  any  legislature  may  not  represent  the  majority 
of  actual  voters  at  the  time,  and  a  president  chosen  according 
to  law  may  not  be  elected  by  the  greater  number  of  votes  of 
the  whole  people.  Thus  an  actual  major  vote  is  no  certain 
proof  of  an  election  by  a  majority.  On  the  other  hand  a 
two-thirds  vote  for  officers  and  laws  would  express  more  wis- 
dom— which  is  the  principal  need — than  a  bare  majority,  but 
a  rule  prescribing  this  would  render  elections  impossible  in 
many  cases. 

While  a  majority  carries  its  points,  a  minority  can  fail  to 
get  its  share  of  influence  in  a  legislature  in  nine  cases  out  of 
ten.  It  can  easily  happen  that  in  an  election  for  a  legislature 
of  one  hundred  and  fifty  members,  one  hundred  may  be 
elected  by  majorities  which  all  together  would  not  be  equal 
to  the  minority  in  a  single  district.  This  consideration  seems 
to  show  that  the  majority  rule  gives  a  party  more  than  its 
just  share  of  power;  and  for  other  reasons,  especially  for 
securing  men  who  would  not  otherwise  be  elected,  for  temper- 
ing the  violence  of  the  majority,  for  bringing  forward  inde- 
pendent thinkers  it  is  very  desirable  that  minority  represen- 
tation should  have  a  chance  to  be  tried.  Many  plans  have 
been  suggested,  some  few  experiments  have  been  made,  and 
the  subject  is  too  important,  as  well  as  appeals  too  strongly  to 
the  love  of  fairness  not  to  be  pursued,  until,  in    the  freest 


THE   ORGANIZATION   OF   STATES.  299 

countries,  it  shall  be  introduced  as  one  of  the  institutions  of 
society.  The  plans  will  be  examined  more  at  large  in  the 
last  part  of  this  work  (Vol.  ii,  §,219). 

§  100. 
We  are  now  brought  to  the  rights  of  suffrage  and  of  hold- 
Rights  of  suffrage  ing  office.     Before  we   look  at  them,  however, 

and   of  holding   of-  .  .  .        -  .     . 

fice.  we  may  ask   what   is  the  meaning  ot  the  term 

"  right  to  office?"  Is  it  not  simply  this — that  if  qualified 
citizens  choose  me,  I  have  no  disqualification  which  will  pre- 
vent me  from  discharging  the  duties  ?  It  is  not  intended  that 
I  have  an  absolute  right  to  office,  a  right  to  take  my  turn  in 
some  public  employment.  If  I  had  the  right  to  office  in  such 
a  sense,  the  vote  of  others  would  prevent  me,  it  might  be, 
from  exercising  that  right.  By  consequence  there  ought  to 
be  no  suffrage  in  my  way  ;  and  the  only  just  method  of  de- 
ciding between  my  claims  or  desires  and  those  of  some  thou- 
sands in  the  same  condition  would  be  to  commit  the  matter 
to  the  lot.  Offices,  moreover,  ought  to  be  held  for  a  very 
short  time,  in  order  that  every  one  may  have  a  chance  ;  and 
the  power  of  re-election  should  be  abridged,  that  the  turn  of 
each  may  come  round  as  often  as  that  of  every  other.  The 
Athenians  carried  out  the  democratic  principle  rigidly — al- 
though other  reasons  concurred  with  or  were  stronger  than 
this  principle — when  they  cast  lots  for  as  many  as  wanted  a 
chance  to  obtain  some  public  place,  as  well  in  many  of  the 
magistracies  as  in  the  council  of  four  hundred  and  the  helias- 
tic  courts.  But  they  were  wisely  inconsistent,  when  they 
trusted  their  own  will  in  electing  certain  high  functionaries 
more  than  they  did  the  lot. 

Why,  now,  is  selection  by  ballot  or  show  of  hands  or  word 
of  mouth,  rather  than  by  lot,  adopted  almost  universally  ?  Is 
it  not  to  prevent  persons  from  getting  into  office  who  are  un- 
fit for  it,  or,  in  other  words,  in  order  to  obtain  the  best  officers  ? 
But  the  persons  best  qualified  to  choose  will,  in  the  long  run, 
select  the  best  officers.  Why  not  then  apply  the  same  rule 
in  this  case  as  in  that  of  holding  office,  and  give  the  right  of 


500  POLITICAL   SCIENCE. 

suffrage  to  those  who  are  most  likely  to  exercise  it  well  ? 
Persons  are  excluded  from  the  power  of  holding  office  by 
age,  or  sex,  or  some  other  condition  ;  why  may  they  not  be 
excluded  from  voting  also  by  certain  disqualifications  ?  Why, 
for  instance,  is  a  child  of  fifteen  years  of  age  denied  this  right  ? 
Not  because  he  might  exercise  it  to  his  own  injury,  which  is 
the  reason  for  denying  to  him  the  right  of  making  a  valid 
contract,  but  because  he  could  not  do  it  intelligently,  and  he 
would  also  represent  in  his  vote  his  parent's  wishes  or  be 
otherwise  biased.  Why,  on  the  other  hand,  is  a  man  under 
the  age  of  twenty-five  incapable  of  becoming  a  member  of 
the  House  of  Representatives  of  the  United  States,  or  under 
that  of  thirty,  a  senator  of  the  United  States,  or  under 
that  of  thirty-five,  President,  and  not  even  then,  unless  he 
be  a  natural-born  citizen  ?  Is  it  not  for  the  purpose  of  exclud- 
ing, by  a  general  rule,  inexperienced  persons  or  such  as  are 
not  likely  to  have  the  tact  or  the  spirit  of  indigenous  life  ? 
The  rule  may  bear  hard  on  a  few  precocious  geniuses,  as 
even  what  is  called  universal  suffrage  may  bear  hard  on  some 
under  one  and  twenty,  but  it  is  made  for  the  purpose  of 
keeping  out  as  much  want  of  political  wisdom  as  any  rule 
can. 

We  must  say,  then,  that  the  electors  in  a  community  are  a 
kind  of  committee  to  act  for  the  whole,  and  that  there  is  no 
natural  right  belonging  to  every  citizen  to  give  his  vote  as 
one  of  such  a  committee. 

But  it  is  said  that  as  the  natural  or  private  rights  are  given 
to  all,  and  are  liable  to  invasion,  and  the  invasion  will  often 
come  from  some  state  power,  hereditary  or  elective,  all  grown- 
up males  need  a  protection  against  the  magistrate  or  the  law- 
maker, and  that  this  protection  is  only  exercised  through  the 
ballot-box.  If  this  were  so,  we  must  logically  give  the  suf- 
frage to  women  also  ;  and  I  would  go  further  still,  I  would 
make  the  number  of  votes  to  be  cast  depend  on  the  size  of  a 
family,  the  suffrages  being  collected  from  house  to  house  to 
avoid  the  necessary  contact  with  the  coarser  exhibitions  of 
life  to  which  women,  going  to  the  polls,  would  necessarily  be 


THE   ORGANIZATION   OF   STATES.  301 

exposed.  But  the  argument  may  be  turned  back  against  it- 
self. For  if  there  is  to  be  a  limitation  of  suffrage  apart  from 
the  consequences  of  crime,  it  must  depend  either  on  want  of 
property  or  of  intelligence  or  of  character  ;  or  as  now  almost 
everywhere  in  this  country,  must  be  confined  to  males  over 
twenty-one,  born  or  naturalized.  The  question  now  is 
whether  the  classes  excluded  by  the  three  first  of  these  limi- 
tations need  protection  against  those  who  can  vote,  or  the 
latter  against  the  former.  As  the  classes  excluded  by  sex  or 
minority  follow  the  condition  of  the  families  to  which  they 
belong,  there  can  be  in  general  for  them  no  want  of  protec- 
tion. Suppose  now  the  classes  without  intelligence  or  pro- 
perty or  character  to  have  the  suffrage  and  to  be  predominant 
in  society,  will  the  elections  of  local  or  of  more  public  officers 
be  made  more  intelligently  than  if  they  had  been  excluded  ? 
Is  it  not  quite  conceivable  that  such  an  element  among  the 
voters  would  give  rise  to  a  class  of  demagogues,  whose 
means  of  gaining  power  would  be  to  produce  a  division  be- 
tween classes,  and  to  array  the  poor  against  the  rich  ?  It  is 
moreover  a  maxim  of  English  liberty,  on  which  the  Ameri- 
can colonies  insisted  at  the  time  of  the  revolution,  that  taxa- 
tion and  representation  should  go  together.  But  with  a 
universal  suffrage  there  is  danger  of  electing  persons  who  will 
not  respect  this  principle  ;  and  especially  when  municipalities 
lay  their  own  taxes,  there  is  great  danger  that  they  who  pay 
nothing  will  outvote  those  who  pay  everything.  So  in 
choosing  magistrates,  if  police  judges  and  the  members  of  a 
police  are  chosen  by  the  votes  of  those  members  of  a  com- 
munity who  have  an  interest  in  being  screened  from  punish- 
ment, how  can  the  interests  of  society  be  safe  in  the  hands 
of  such  officers  ?  But  it  is  not  difficult  to  make  such  elections 
in  those  large  cities,  where  all  are  admitted  to  the  polls.  Nor 
is  this  all.  If  the  classes  of  the  community  in  question  were 
entirely  honest,  their  situation  in  life  prevents  them  from 
taking  large  views  of  public  policy,  and  thus  they  will  cast 
their  vote  for  small  men,  they  will  misjudge  the  character  of 
candidates  for  office.      On  the  other  hand,  if  the  possession 


302  POLITICAL   SCIENCE. 

of  a  small  amount  of  property  brings  the  reward  of  sharing 
in  political  power,  it  encourages  thrift,  industry,  morality. 
Property,  however,  is  only  an  index ;  and  if  suffrage  is  not 
thrown  open  to  all,  it  ought  to  be  confined  to  such  as  can  read 
and  write,  who  have  also  some  interests  at  stake  which  make 
them  desire  good  government.  The  franchise  ought  to  be 
taken  away  also,  not  from  those  who  lose  their  property, 
but  from  those,  whether  rich  or  poor,  who  lose  their  character 
by  any  serious  offence  against  the  laws.  Civil  ignominy 
would  become  a  punishment  severe  and  much  dreaded  ;  but 
recovery  of  rights  after  a  term  of  good  conduct  ought  to  be 
possible. 


CHAPTER  VII. 

LIBERTY   AND    EQUALITY    IN    CONFLICT,    OR   COMMUNISM 
AND   SOCIALISM. 

§    IOI. 
In  the  preceding  discussion  we  have  felt  ourselves  obliged 
Conflict  between   to  maintain  that  an   exact   equality  of  political 
li^'of Equality dof  condition,  as  it   respects  the  right  of  suffrage 

condition.  and  the   rjght  of  holdjng  office>    cannot  be    justly 

claimed  by  every  citizen  of  a  free  country  ;  that  universal  suf- 
frage does  not  secure  the  government  of  the  wisest  nor  even 
secures  the  liberties  of  a  country  placed  under  such  a  demo- 
cratic constitution,  much  less  secures  its  order  and  stability. 
But  in  such  a  country  liberty  and  equality  are  not  necessarily 
in  conflict.  It  is  possible  to  conceive  of  the  same  political 
rights  being  open  to  all ;  that  is,  that  justice  and  right  should 
be  equal,  while  yet  in  outward  circumstances  great  inequality 
prevails.  Indeed,  that  is  the  state  of  all  free  societies.  But 
equality  may  be  taken  in  another  sense  ;  it  may  be  made  to 
mean  equality  of  condition  or  possession,  and  here  it  must 
come,  if  a  state  is  founded  on  such  a  basis,  into  direct  hostil- 
ity to  the  rights  which  are  included  under  the  term  liberty  ; 
especially  the  rights  of  property,  of  free  industry  and  of  free 
transmission  of  property.  The  state,  in  such  a  system  of 
things,  or  some  community  under  the  state,  is  looked  to  for 
the  exercise  of  a  control  over  these  rights,  which  would  be,  if 
realized,  more  tyrannical  than  any  under  which  the  citizens 
of  antique  republics  ever  suffered. 

It  is  our  purpose  in  this  chapter  to  consider  first  the  ine- 
qualities which  grow  up  in  society  from  the  unrestricted  ex- 
ercise of  the  rights  of  property  and  inheritance,  and  then  the 


304  POLITICAL   SCIENCE. 

schemes  ending  in  modern  communism  and  socialism,  which 
have  it  for  their  object  to  prevent  or  remedy  such  inequali- 
ties 

Let  us  conceive  of  a  community  which  knows  nothing  of 
differences  of  classes  or  of  political  disabilities  among  the  citi- 
zens, and  has  divided  up  the  territory  in  equal  lots  among  the 
inhabitants,  giving  them  the  power,  however,  to  retain  or 
dispose  of  those  lots  at  will.  In  such  a  free  society  equality 
of  condition  would  not  long  continue,  if  there  were  any  indus- 
trial progress.  Inequality  inevitably  springs  out  of  differences 
of  vigor  of  mind,  of  intelligence,  of  sobriety,  of  number  of 
children,  of  thrift,  and  of  economy.  The  law  of  inheritance 
— that  law  which  is  the  great  stimulus  to  industry  and  the  great 
civilizer  of  mankind,  only  perpetuates  differences  of  condi- 
tion. The  advantages  obtained  by  the  father  might  be  re- 
tained and  increased  by  the  child.  Division  of  labor,  inven- 
tions kept  secret  at  first  and  thus  benefiting  certain  persons 
more  than  others,  various  superiorities  of  soil,  climate,  or 
situation,  would  add  to  these  inequalities,  and  give  a  still 
more  favorable  position  to  the  strongest. 

But,  still  further,  the  movements  even  within  a  community 
where  all  were  free,  would  tend  to  create  and  perpetuate 
strata  in  society,  so  that  instead  of  one  community  there 
would  be  a  number  of  social  layers,  or  fractions,  or  cliques, 
the  members  of  which  would  be  brought  together,  by  wealth 
or  poverty,  culture  or  the  want  of  it,  or  some  other  cause 
which  would  unite  equals  only,  and  divide  one  body  into  sepa- 
rate parts.  There  can  be  no  society  in  a  state  under  the  best 
possible  laws,  where  there  will  prevail  a  uniform  sympathy, 
where  some  will  not  be  innocently  estranged  by  circumstances 
from  others.  Nor  can  we  expect,  as  human  nature  now  is, 
that  the  inequalities  of  condition,  manifest  in  the  world,  will 
not  lead  to  envy  and  discontent,  or  will  not  depress  some 
kinds  of  dispositions  as  much  as  they  fill  others  with  eager 
longings.  At  all  events,  the  strata  of  society  will  misunder- 
stand one  another,  will  have  often  a  bitterness  toward  one 
another,  which  freedom  itself,  and  a  sense  of  equality  must 


LIBERTY   AND   EQUALITY    IN   CONFLICT.  305 

only  intensify,  which  is  not  found  to  the  same  extent  in  a 
community  where  the  lower  class  consists  of  slaves. 

If  in  such  a  society  capital  and  labor  join  in  production, 
and  if  the  law  of  family  inheritance  is  preserved  intact,  the 
strata  of  society  might  be  continued  from  age  to  age.  This, 
indeed,  would  not  be  absolutely  and  without  exception  true, 
as  the  history  of  industry  and  of  invention  makes  clear,  but 
it  would  be  in  the  main  true,  and  it  would  become  more 
manifestly  a  law  of  society  with  the  introduction  of  labor-sav- 
ing machines,  which,  being  expensive  in  themselves  and  in 
their  repairs,  must  be  owned  by  the  wealthy.  There  will 
arise  also  a  necessity  that  a  capitalist  should  be  on  hand  to 
pay  the  laborer  his  wages,  during  the  progress  of  his  work 
and  before  it  is  offered  for  sale.  And  if  there  should  arise  a 
class  of  capitalists  who  lend  money  to  employing  producers, 
the  system  is  only  so  much  the  more  complicated  ;  it  is  not 
altered  in  its  essential  features.  Modern  production,  more- 
over, is  so  unrelenting,  that  it  has  destroyed  in  great  meas- 
ure the  competition  of  individual  laborers.  The  woman  at 
home,  in  her  cottage,  can  no  longer  work  during  odd  hours 
at  spinning  or  weaving  ;  the  man,  for  the  most  part,  can  no 
longer  give  part  of  his  time  to  manufacturing,  and  spend  the 
rest  of  it  in  labor  on  a  garden  or  field.  Alas  !  in  some  coun- 
tries he  has  no  field  and  no  cottage  of  his  own  ;  he  must  say, 
"  This  one  thing  I  do  ;  I  toil  ten  hours  a  day  in  the  manufac- 
tory, liable  to  lose  my  work  in  any  change  which  diminishes 
demand  for  the  products  which  I  help  to  create." 

The  growth  of  a  feeling  of  liberty  and  of  equal  political 
rights  only  aggravates  the  evil  working  of  this  necessary 
state  of  things.  Very  different  in  many  respects  is  the  con- 
dition of  the  workman,  in  the  productive  countries  of  the 
present,  from  his  condition  in  the  old  world  and  in  the  middle 
ages  of  Europe.  We  refer  not  to  his  treatment  by  his  em- 
ployer who  was  then  his  owner  also,  but  to  the  effect  which 
the  emancipation  of  the  serf  and  the  admission  of  the  peas- 
ant to  political  rights  must  necessarily  have  on  his  mind. 
Slavery  brought  with  it  to  the  old  political  writers  its  prob- 
20 


306  POLITICAL   SCIENCE. 

lems,  and  the  risings  of  slaves  in  many  places,  as  in  Chios 
and  in  Sicily,*  put  these  in  a  fearful  light ;  but  the  political 
evils  of  this  institution  were  not  felt  in  an  equal  degree  with 
the  social.  The  same  is  true  of  mediaeval  Europe.  There 
serfdom  was  bad  enough,  but,  all,  both  masters  and  serfs, 
belonged  to  one  church  and  were  equal  members  of  it  ;  on 
the  fief  the  serfs  formed  a  kind  of  community  as  the  slaves 
on  a  plantation  do  now  ;  the  world  without  was  an  unknown 
thing  which  excited  but  little  of  curiosity  in  the  farm-laborer's 
breast  ;  and  if  discontent  or  some  other  motive  led  him  to 
flee  from  his  home  to  a  town  where,  after  a  concealment  of  a 
year  and  a  day,  he  became  a  freeman,  he  belonged  to  the 
landless  mass  of  civic  operatives.  Yet  in  the  middle  ages 
themselves  the  Jacquerie  in  France  (1358),  the  rising  of  the 
English  peasants  a  little  later,  and  the  German  peasants' 
war  after  the  breaking  out  of  the  reformation,  show  what  fer- 
ment can  arise  from  changes  in  the  condition  or  feelings  of 
the  laborer  on  the  soil. 

In  later  times,  when  capital  became  well  organized  and 
strong,  and  when  the  laborer  began  to  acquire  new  powers 
of  political  action,  theories  of  political  equality  could  not 
fail  to  make  their  appearance,  in  which  it  was  taught  that  the 
human  personality  itself  gave  a  title  to  a  share  in  the  govern- 
ment. After  this,  and  especially  in  times  when  a  decrease 
in  the  demand  for  products  made  capitalists  unwilling  to  pay 
the  same  wages  as  before,  the  laborers  in  the  manufactories 
were  ready  to  listen  to  any  theory  which  promised,  by  the 
hope  of  reforming  the  relations  of  society,  to  raise  them  to 
an  equality  with  the  capitalist,  to  remedy,  by  law  or  otherwise, 
evils  which  contract  between  employers  and  the  employed 
could  not  remedy.  "  We  and  ours  must  live,"  they  could 
say,  "  only  by  submitting    to  the  terms  which   the   capitalist 

*  Plato,  in  the  Laws,  vi.,  776,  B.  and  onward,  a  passage  once  be- 
fore cited,  shows  his  sense  of  the  troubles  which  slavery  brings  with 
it.  For  the  rising  in  Chios,  comp.  Athemeus,  vi.,  £§  88-90,  p.  265, 
D.  For  the  age  of  this  rising,  comp.  Miiller,  hist.  Graec.  frag.  vol. 
ii.,  p.  378.  For  the  Sicilian  risings,  see  Mommsen's  hist,  of  Rome, 
hi.,  100,  Amer.  ed.  of  transl. 


LIBERTY   AND    EQUALITY   IN   CONFLICT.  307 

offers.  The  suffering  will  fall  inevitably  on  us,  while  he  with 
only  a  temporary  loss  can  wait  for  better  times."  And  it  were 
well  if  the  new  wine  of  political  rights  put  into  old  bottles, 
if  political  privileges  to  which  they  were  unequal,  if  the  feel- 
ing of  political  equality  with  those  whose  equals  they  were 
far  from  being  socially  or  intellectually,  did  not  make  them 
discontented,  enemies  of  existing  order,  disposed  to  find  fault 
with  every  conserving  force. 

§  102. 
The  state  of  things  thus  indicated,  demands  some  kind  of 

Methods  of  equal-  reform.  All  reform  must  proceed  from  society 
iriag conditions.  Gr  from  law.  As  for  those  projects  which  de- 
pend on  association  of  laborers,  or  "  organization  of  labor," 
which,  without  overthrowing  any  institutions,  can  make  the 
same  men  laborers  and  capitalists  at  once,  and  may,  by  stim- 
ulating industry,  thrift,  sobriety — through  the  feeling  that 
each  partner  has  a  personal  interest  in  the  greatest  amount  of 
product — end,  when  tried,  in  the  best  results, — we  wish  them 
well  with  all  the  heart.  It  may  be  that  they  can  reform  the 
laborer  and  give  him  such  activity,  that  in  the  end  all  work 
that  requires  numbers  to  be  engaged  together  shall  take 
the  shape  of  association  on  equal  or  nearly  equal  terms. 
But  as  this  would  call  for  no  new  law,  would  interfere  with 
no  rights,  and  is  simply  a  social  question,  it  does  not  concern 
us  here.  We  confine  ourselves  to  such  schemes  as  call  for 
the  protection  of-  law  against  capital  or  overgrown  capital,  or 
which  in  some  way  limit  the  free  use  of  the  rights  of  property, 
or  interfere  with  family  power.  The  principal  point  in  our 
enquiry  will  relate  to  the  justice  of  such  plans  ;  their  influ- 
ence on  the  general  interests  of  a  community  will  be  a  sub- 
ordinate consideration. 

Here  first  we  may  look  at  those  plans  which  seek  to  limit 
the  amount  of  capital,  especially  of  capital  in  land,  which 
can  legally  be  owned  by  one  proprietor.  The  agrarian  laws 
of  Rome  were,  it  is  now  admitted,  no  such  attempt  at  limiting 
the  gross  number  of  acres,  but  they  related  only  to  the  pub- 


303  POLITICAL   SCIENCE. 

lie  land  which  some  of  the  optimatcs  had  managed  to  get  into 
their  hands,  without  purchase  in  the  proper  sense  of  that 
term,  and  even  without  authority  of  any  kind.  There  can 
be  no  doubt  that  a  state  owning  wild  land  can  divide  it  up 
into  small  parcels  for  the  sake  of  the  equal  benefit  of  all, 
and  may  even  prohibit  any  single  person  at  the  outset  from 
buying  or  leasing  more  than  one  parcel.  But  what  shall  be 
said  of  the  justice  of  limiting  property  in  land  in  general  to 
a  definite  amount,  to  five  hundred  acres  for  instance,  or  to 
an  amount  having  a  certain  money  value  ?  Whatever  is  to 
be  said,  the  same  rule  ought  to  apply  in  other  branches  of 
business,  to  capital  in  money,  or  stocks,  or  houses,  or  ships. 
For  although,  politically  speaking,  it  is  desirable  that  as  many 
acres  as  possible  should  be  distributed  in  fee  simple  through 
society,  it  does  not  appear  that  the  independence  of  a  tenant 
of  a  farm  need  be  more  injured  by  such  a  relation  to  another 
person  than  that  of  the  tenant  of  a  house.  The  importance 
of  landed  property  in  political  science  is  relatively  less,  as  a 
country  grows  older  ;  the  other  shapes  in  which  the  gains  of 
labor  can  be  put,  become  more  numerous  and  more  important, 
while  land  remains  the  same  in  quantity  and  increases  but 
slowly  in  value.  The  lessees  of  farms  are  freer  and  more  in- 
telligent than  the  workmen  in  manufactories.  The  question 
then  becomes  a  general  one  ;  shall  wealth,  of  whatever  de- 
scription, in  single  hands,  be  limited?  Such  a  limit  is  gross 
injustice,  unless  the  existence  of  a  country  depends  on  the 
limitation.  The  principle  of  inheritance  according  to  just 
laws  of  descent  will  continually  cause  subdivisions  of  estates, 
unless  population  remains  stationary  from  one  generation  to 
another.  If  a  limit  to  the  amount  of  property  prevailed  so 
as  to  include  all  kinds,  it  would  act  to  the  prejudice  of  ex- 
changes and  greatly  embarrass  business.  If  only  land  were 
affected  by  such  a  limit  it  might  not  be  difficult  to  evade  the 
law  by  dividing  property  among  the  members  of  one  family. 
On  the  other  hand  some  nations  have  endeavored  to  pre- 
vent the  alienation  of  landed  property  from  families,  by  plac- 
ing the  land  out  of  the  disposal  of  the  present  occupant.      It 


LIBERTY   AND   EQUALITY   IN    CONFLICT.  309 

is  possible  to  justify  this  on  the  ground  that  the  community, 
having  obtained  a  title  to  the  soil  by  conquest,  leases  it  per- 
petually for  services  to  be  rendered,  allowing  possession  to 
pass  in  a  certain  line  of  descent,  with  reversion  to  the  state 
(or  the  suzerain)  when  the  line  fails.  The  land  may  be  given 
for  ecclesiastical  or  military  purposes.  The  plan  of  putting 
properties  in  the  hands  of  militcs  is  that  of  the  feudal  system. 
It  approaches  the  system  of  castes,  and  makes  necessary  an 
order  of  nobility  devoted  to  the  defence  of  the  country.  But 
when  this  duty  had  ceased  to  be  rendered  in  person,  and  the 
community  was  taxed  for  the  services  of  the  military  nobility, 
there  would  have  been  no  injustice,  as  it  seems,  in  taking  from 
such  proprietors  their  landed  estates,  since  personal  service 
in  war  was  the  condition  on  which  the  lands  were  held.  But 
in  the  present  day,  when  large  tracts  of  land  must  have  gone 
from  such  original  owners  or  their  successors  in  the  family  to 
other  proprietors  who  paid  money  for  them,  such  alienations 
would  be  attended  with  great  hardship  if  not  great  injustice. 
Entails,  however,  which  prevent  land  from  being  alienated  or 
divided  up,  and  may  make  a  large  part  of  a  nation  landless; 
which  injure  a  country  politically,  and  are  a  kind  of  monop- 
oly, so  far  as  they  hinder  the  free  investment  of  capital  ac- 
cumulated in  active  business;  may  without  injustice  be  abol- 
ished by  law. 

There  is  another  system  of  land-tenure  settled  by  law  and 
intended  to  be  perpetual,  which  was  seen  in  the  institutions  of 
the  Israelites  and  the  Spartans.  In  both  cases  the  aim  was 
to  keep  estates  in  the  families  to  which  they  were  assigned 
after  an  original  conquest,  with  the  necessary  arrangements 
consequent  upon  it.  Among  the  Israelites  the  lots  were  at 
first  nearly  alike  ;  the  settlers  could  alienate  them  for,  at 
most,  a  period  of  fifty  years  ;  and  the  price  paid  was  calcu- 
lated on  the  value  of  the  usufruct  until  the  next  year  of  jubi- 
lee. Houses  in  walled  towns  (Levit.,  xxv.,  30,)  which  might 
be  occupied  by  artisans,  and  ground  plots  devoted  to  sacred 
uses  (ibid.,  ch.  xxvii.,1),  if  they  belonged  to  a  family  lot,  were 
exceptions  to  this  rule,  and  might  be  subject  to  perpetual 


310  POLITICAL   SCIENCE. 

alienation.  It  would  seem  that  this  institution  was  neglected 
during  a  considerable  part  of  the  Jewish  history.* 

If  the  tradition  received  by  ancient  writers  and  by  most  mod- 
ern scholars  is  to  be  relied  upon,  that  the  Lycurgan  constitution 
made  an  equal  division  of  land  among  the  Dorians  of  Sparta;f 
there  was,  at  least,  no  sufficient  guarantee  of  the  permanence 
of  this  practice.  In  the  time  of  Aristotle  (Polit.  ii.,  6,  §  io), 
there  was  a  great  disproportion  between  the  landed  estates, 
and  the  soil  had  come  into  a  few  hands.  Two-fifths  of  it  be- 
longed to  women.  This  shows  thus  much  at  least,  that  a 
state  which,  by  laws  like  Sparta's,  seeks  to  keep  out  all  change 
and  all  disorganizing  influences  by  discouraging  trade  and 
other  intercourse  with  foreigners,  cannot  long  maintain  its 
first  condition.  The  Jewish  institutions  also,  which  were  far 
better  fitted  to  preserve  equality  of  condition  and  family  life, 
had  no  permanent  success.  Admitting,  then,  the  justice  of 
an  equal  partition  of  lands  among  the  conquerors,  we  find 
that  such  institutions  can  by  no  means  maintain  their  ground 
against  the  changes,  that  is,  against  the  natural  laws  of  society. 

Among  the  Greek  devisers  of  artificial  institutions  of  soci- 
ety may  be  mentioned  Hippodamus,  of  Miletus,  who  lived 
a  little  before  Plato.  He  divided  the  inhabitants  of  his  city 
into  three  classes,  artisans,  agriculturists,  and  soldiers,  and 
the  land  into  sacred,  public,  and  private.  All  classes  were 
free  and  chose  the  public  officers.  Aristotle  (Polit.,  ii.,  5, 
^§  5-7)  criticises  his  plan  as  being  unable  to  maintain  itself.  If, 
says  he,  the  soldier  class  is  numerous,  they  will  be  sure  to 
engross  political  power.  If  they  cultivate  their  own  lands, 
they  will  not  differ  from  the  farmers.  The  armed  men  will 
easily  make  the  artisans,  who  have  neither  arms  nor  land,  and 
the  farmers,  who  have  no  arms,  their  slaves. 

Another  theorist  mentioned  by  Aristotle,  Phaleas,  of  Chal- 

*  See  Winer's  Realworterb.,  Art.  Jubeljahr,  and  Saalschiitz,  IUos. 
Recht,  chap.  13. 

f  See  Grote,  ii.,  528  onward,  who  denies  the  existence  of  such  an 
early  usage,  and  Schumann  de  Spartanis  Homoeis,  who  examines 
Grote's  positions  at  length. 


LIBERTY   AND   EQUALITY   IN   CONFLICT.  311 

cedon,  wished  for  equality  of  property  among  all  the  citizens 
of  his  commonwealth.  This  would  be  easy  enough  at  the 
foundation  of  a  new  state  ;  but  he  thought  that  the  difficulties 
of  introducing  it  into  an  old  one  could  be  overcome  by  a  law 
prescribing  that  the  rich  should  give  marriage  portions  to  their 
daughters  and  take  none  for  their  sons  ;  while  the  poor  should 
take  without  giving.  Aristotle  remarks  that  those  who  de- 
termine the  amount  of  property  ought  to  determine  the  num- 
ber of  children  also  :  otherwise  equality  is  disturbed.  (Polit., 
ii->  4»  §3-)  Thus  one  shackle  on  natural  freedom  necessi- 
tates another. 

Plato  in  the  republic,  in  order  to  prevent  selfishness  and 
promote  union,  proposes  to  have  wives  and  children  so  far 
common  that  the  parents  in  the  guardian  class  shall  not  know 
who  their  children  are.  The  class  is  to  be  supported  out  of 
the  public  treasury  without  being  allowed  to  hold  property, 
or  to  have  any  use  for  money.  (Repub. ,  esp.  v. ,  460  B — 461 , 
E.  and  iii.  end.)  That  this  was  not  merely  a  dream  of  the 
imagination,  which  this  great  idealist  would  have  rejected  if 
it  had  been  realized,  seems  to  be  shown  by  a  passage  in  the 
Laws  (v.,  739,  C.  and  onward),  where  the  best  polity  and 
laws  are  said  to  provide  for  a  community  of  everything  among 
friends.  "  Whether  there  is  now  or  ever  will  be  this  commu- 
nion of  women  and  children  and  of  property,  in  which  the 
private  and  individual  is  altogether  banished  from  life — and 
things  which  are  by  nature  private,  such  as  eyes,  and  ears,  and 
hands,  have  become  common,  and  in  some  way  men  see,  and 
hear,  and  act  in  common, — whether  all  this  is  possible  or  not, 
I  say  that  no  man  acting  upon  any  other  principle  will  ever 
constitute  a  state  more  exalted  in  virtue,  or  truer  or  better 
than  this.  To  this  we  are  to  look  for  the  pattern  of  the  state, 
and  to  cling  to  this,  and  as  far  as  possible  to  seek  for  one 
which  is  like  this."  * 

We  will  not  stop  to  consider  those  communistic  institutions 
which  religious  fanatics  have  attempted  to  set  up.     It  is  re- 

*  Jowett's  transl. 


312  POLITICAL   SCIENCE. 

markable  that  the  fanaticism  which  has  dictated  such  move- 
ments tends  to  cast  off  the  restraints  of  moral  principle,  to 
maintain  the  indifference  of  outward  actions,  and  to  prepare 
the  way  for  gross  licentiousness. 

§   103. 
The  communism  and  socialism  of  modern  times  derive  their 
.,  ,  importance  from  the  classes  of  society  where 

Modern    commu-  r  J 

msm,  and  socialism.  t]ley  most  prevail,  and  from  the  political  notion 
of  equality  which  gives  them  their  chief  energy.  It  is  in 
France  that  they  have  hitherto  played  their  most  serious  part. 
Mably,  in  his  work  "  on  legislation  or  the  principles  of  laws," 
following  in  the  steps  of  Plato,  as  it  regards  the  fundamental 
importance  of  virtue  in  the  state,  finds  the  great  source  of 
evil  to  lie  in  unequal  amounts  of  property.  Equality  unites 
men,  and  inequality  of  wealth  separates  them.  If  it  should 
be  objected  that  equality  could  only  last  for  a  little  while, 
Mably's  reply  would  be  that  the  Spartans  lived  during  centu- 
ries in  the  greatest  equality.  The  true  remedy  for  inequality 
is  to  take  away  the  property  in  land  from  the  individual.  But 
the  fact  which  Mably  states  is,  as  we  have  seen,  not  true.  The 
equal  partition  of  land  not  only  seems  a  hopeless  and  unprofi- 
table point  to  be  maintained  by  constant  interference,  amid 
inequalities  in  the  size  of  families,  but  demands  also  a  power  on 
the  part  of  the  government  superior  to  that  which  the  most 
tyrannical  of  states  have  exercised.  The  strongest,  he  goes  on 
to  say,  till  the  ground,  the  others  practise  the  mechanic  arts, 
and  the  magistrates  distribute  to  each  family  their  necessary 
supplies.  But  would  not  idleness  break  up  the  whole  system  ? 
As  a  preventive  of  this  radical  fault  he  would  give  honorary 
rewards  to  the  industrious.  And  should  the  productions  of 
the  soil  be  less  abundant,  would  it  not  be  better,  he  asks,  to 
have  more  virtue  in  a  society  than  larger  crops  ?  To  carry 
out  his  system,  Mably  would  put  the  political  power  in  the 
hands  of  deputies  chosen  by  orders,  but  not  in  the  hands  of  a 
capricious,  pilfering,  and  tyrannical  democracy,  which  would 
make  laws  only  to    despise  them.      In   carrying  the  scheme 


LIBERTY   AND    EQUALITY   IN    CONFLICT.  313 

out  wc  must,  in  fact,  establish  a  tyranny,  which  would  have 
control  not  only  over  the  constantly  recurring  partition  of 
lands,  but  in  the  end  over  marriages  and  families. 

Morelly,  a  little  before  Mably,  in  his  "  Code  of  Nature" 
(1755),  had  laid  down  three  fundamental  laws,  the  first  of 
which  is  the  abolition  of  all  individual  property,  except  in 
things  needed  for  direct  use  ;  the  second  that  every  citizen  is 
to  be  supported  and  occupied  at  the  public  expense  ;  and  the 
third  that  every  one  must  contribute  his  share  for  the  general 
utility.  Nothing  is  to  be  sold  or  exchanged  ;  every  one  who 
needs  eatables  or  clothes  can  go  to  the  market  or  magazine 
and  take  what  is  needful,  as  he  would  gather  fruit  from  a  wild 
tree,  or  dig  up  clams  along  the  seashore.  Should  supplies 
fall  short,  the  quota  of  each  must  be  reduced  in  quantity  ;  but 
measures  must  be  taken  that  the  necessaries  of  life  be  pro- 
cured in  sufficient  abundance.  Morelly's  plan  of  organization 
suggested  the  idea,  says  Paul  Janet,  of  the  plans  and  systems 
of  the  French  socialist  reformers.* 

We  come  down  to  the  more  modern  attempts  to  reorgan- 
ize society  on  the  principle  of  equality  of  pos- 

Communism. 

sessions. 
The  progress  of  the  communistic  and  the  socialistic  theo- 
ries may  be  viewed  according  to  an  eminent  authority,  M. 
Laurent  von  Stein,  professor  at  Vienna,  in  his  history  of 
the  social  movement  in  France  (i.,  cviii.,  Leipz.,  1850),  at 
three  successive  points.  The  first  is  the  negation  of  personal 
property,  on  the  ground  that  it  involves,  of  necessity,  the  de- 
pendence of  the  non-possessor  on  the  possessor.  Property, 
being  limited,  must  confer  a  power  over  the  freedom  of  those 
who  have  it  not.  But  men  need  products  ;  production  needs 
material ;  material  needs  work  ;  and  work,  if  the  individual 

*  Histoire  de  la  science  politique,  ii.,  705-706,  ed.  2,  1872,  a  work 
crowned  by  the  French  academy  and  by  that  of  the  moral  and  polit- 
ical sciences,  and  which  I  have  freely  used  in  relation  to  Mably  and 
Morelly.  Taine  (anc.  regime,  p.  230,  Am.  ed.  of  transl.)  calls 
these  two  men,  with  Naigeon  and  Sylvain  Marechal,  "fanatics  that 
erected  atheism  into  an  obligatory  dogma  and  into  a  superior  duty." 


3 14  POLITICAL   SCIENCE. 

does  it  for  himself,  will  at  once  create  property.  In  order  to 
prevent  the  existence  of  this  source  of  dependence  and  un- 
freedom,  the  work  must  not  be  done  for  the  individual,  but  for 
the  community.  The  community  receives  and  distributes  the 
products,  and  in  this  way  alone  can  equality  be  kept  up. 
The  name  of  communism  is  given  to  the  systems  of  life  based 
on  the  fundamental  thought  of  the  non-existence  of  private 
property  and  of  a  community  of  goods  in  a  society. 

But  all  communism  contains  a  contradiction  in  itself.  For 
as  individuals  must  do  the  work  when  property  is  common, 
as  well  as  when  it  belongs  to  a  single  person  or  family,  their 
power  of  choosing  their  work  and  of  distributing  the  pro- 
ducts must  be  taken  away.  It  passes  over  to  the  community, 
which  can  only  do  its  task  through  officials.  Thus  a  new  de- 
pendence arises,  a  veritable  slavery,  which  is  opposed  entirely 
to  the  idea  of  equality.  "This  contradiction  communism 
cannot  solve,  and  must  fall  to  pieces,  as  soon  as  this  is  pro- 
nounced ;  it  becomes  clear  that  every  kind  of  communism 
would  put  a  new  and  more  intolerable  loss  of  freedom  in  the 
stead  of  social  dependence  ;  and  the  idea  of  equality  turns 
away  from  it  to  enter  upon  another  path."  (Stein,  u.s.,  p.  cix.) 
For  it  differs  from  the  operations  of  capital  in  a  special  form 
only  in  this  particular — that  capital  in  private  hands  competes 
but  here  has  no  competitor  ;  the  workman  may  go  in  ordi- 
nary society  from  employer  to  employer,  and  even  may  com- 
bine with  other  workmen  against  all  employers;  but  here  the 
property  in  the  country  says  to  the  workman  of  the  country 
"  thou  shalt  work  as  I  direct,  or  go  to  the  house  of  correction." 

If,  then,  there  is  any  remedy  for  this  slavery,  it  must  con- 
„  . ,.  sist  in  making  capital  subject  to  work.     This  is 

Socialism.  °        •»  J 

the  office  of  socialism — the  second  of  the  three 
systems  for  realizing  the  idea  of  equality  in  society.  Social- 
ism may  be  said  to  reason  thus  ;  as  the  value  of  materials 
comes  from  work,  and  capital  is  the  accumulated  value  of 
work,  all  work  ought  to  give  property  to  the  workman  ;  and 
it  is  opposed  to  the  nature  of  work  that  the  property  pro- 
duced by  it  must  go  to  the  capitalist  rather  than  to  the  work- 


LIBERTY    AND   EQUALITY    IN    CONFLICT.  3 1  5 

man.  The  sway  of  capital  over  labor,  then,  shows  itself  to 
be  unnatural,  in  that  it  separates  work  and  possession,  which 
naturally  belong  together.  Such  separation  opposes  freedom. 
"  Work  and  freedom  are  identical.  13ut  if  this  be  so,  an  ar- 
rangement of  society  ought  to  exist  by  which  the  idea  of 
work  and  the  right  of  possession  are  realized."  (Stein,  u.s., 
cxi.)  Socialism  includes  all  the  systems,  and  all  the  thoughts 
and  enquiries,  which  raise  work  to  the  dominion  over  capital, 
— present  work  to  the  dominion  over  past  work, — and  make 
work  the  principal  thing,  the  regulating  principle  of  society. 
Thus  it  stands,  in  all  its  forms,  far  higher  than  communism. 
Its  foundation  is  work  and  individuality.  It  seeks  not  to 
realize  the  abstract  individuality  of  men  according  to  its  con- 
ception, nor  to  abolish  the  individuality  of  the  person.  For 
how  can  this  be  done  where  the  principle  is  acted  upon  that 
every  one  is  to  have  a  share  in  the  product  according  to  his 
capacity,  his  labor  and  his  amount  of  capital  ?  While  there- 
fore communism  aims  at  a  state  of  things  in  which  there  is 
no  distinction  between  the  single  persons,  and  no  society  or 
order  in  the  whole  mass,  socialism  seeks  for  a  society  built 
on  the  bare  organization  of  labor  independent  of  possession. 
(Stein,  u.  s.,  cvii.) 

But  socialism  "  contains  within  itself  a  contradiction,  which 
is  the  proper  and  hopeless  cause  of  all  its  special  perversities 
and  its  general  incapacity  to  make  itself  a  living  reality.  This 
radical  defect  must  be  ascribed  to  the  sway  of  work  over 
capital.  In  this  control  of  actual  work,  at  the  time  being, 
over  the  collected  surplus  of  past  work,  without  which  pres- 
ent work  would  lose  a  great  part  of  its  productiveness,  the 
claim  of  a  fair  gain  from  capital  as  well  as  from  work  is  disre- 
garded, capital  loses  its  motive  for  accumulation,  and  becomes 
a  foe  to  labor.  And  hence  socialism  finds  itself  forced  to  a 
series  of  projects  which  all,  more  or  less,  contemplate  the 
abolition  of  private  property.  Thus  it  falls  back  on  commu- 
nism, and  shows  its  own  want  of  a  self-subsistent  power.  Its 
tyranny  over  capital  is  not  enough  ;  it  must  seek  to  destroy 
capital"  (cxiii.). 


316  POLITICAL   SCIENCE. 

The  third  of  the  three  systems  of  social  equality,  according 

.   _  .     „  to  the  author  whose  views  we  have  expounded, 

Babceurs    com-  x 

munktic plan.  js  a  democratic  socialistic  state,  the  problem  of 

which  is  the  elevation  of  the  lower  classes.  But  we  can  pur- 
sue this  subject  no  farther  than  to  show  by  a  single  example 
what  communism  in  France  has  in  one  instance  actually  pro- 
posed to  itself,  in  an  attempt  at  a  revolution  during  the  time 
of  the  Directory,  when  the  conspirators  met  their  ruin  at  the 
hands  of  their  earlier  democratic  allies.  We  refer  to  Ba- 
bceuf's  conspiracy  in  1796.  From  a  fragment  of  a  "  Projet 
de  decret  economique,"  which  Stein  cites  from  a  work  of 
Buonarotti,  one  of  the  leaders  of  the  conspiracy  and  who 
suffered  exile  while  Babceuf  and  Darthe  were  put  to  death, 
the  following  articles  deserve  mention.  (Stein,  u.  s.,  i.,  184, 
and  onw.)  In  the  republic  a  great  national  community  of 
goods  shall  be  instituted  (Art.  1).  Intestate  and  testamentary 
right  are  abolished.  All  property  now  owned  by  individuals 
shall,  when  they  die,  lapse  to  the  national  community  of 
goods  (3).  These  goods  are  to  be  managed  by  all  the  mem- 
bers in  common  (8).  The  members  are  to  be  supported  in 
a  condition  of  equal  and  honorable  mediocrity.  The  com- 
munity gives  them  all  that  of  which  they  have  need  (9).  No 
man  is  to  have  a  civil  or  military  office  who  is  not  a  member 
of  the  community.  (From  this  it  appears  that  force  for  com- 
pelling people  to  join  the  great  national  community  was  not 
contemplated.)  (11.)  Every  member  is  obliged  to  work  for 
the  community  on  the  land  and  in  useful  arts  in  which  he  has 
been  trained,  excepting  persons  who  have  reached  the  age 
of  sixty,  and  the  infirm.  (Art.  2  of  the  second  rubric.)  The 
citizens  in  every  commune  are  to  be  divided  into  as  many 
classes  as  there  are  useful  arts,  and  every  art  consists  of  ac- 
tual practitioners.  Magistrates  elected  in  every  class  by  its 
members  conduct  the  work,  watch  over  its  equal  distribution, 
execute  the  orders  of  the  communal  government  and  give 
the  example  of  zeal  and  energy.  [!]  The  highest  adminis- 
tration can  furnish  the  communal  board  with  machines,  can 
transport  workmen  from  one  commune  to  another,  if  occa- 


LIBERTY   AND   EQUALITY    IN   CONFLICT.  317 

sion  requires,  and  can  impose  forced  labor  on  the  lazy  and 
irregular  of  both  sexes,  whose  property  then  lapses  to  the 
national  community  of  goods.  [This  is  in  the  transitional 
state,  before  the  great  community  becomes  sole  proprietor.] 
The  class-heads  deposit  in  the  community's  magazine  such 
fruits  of  the  soil  and  the  arts  as  will  bear  keeping.  Respect- 
ing the  distribution  of  products,  it  is  said  that  no  one  can  use 
anything  which  is  not  given  out  by  the  magistrates.  Every 
member  who  receives  pay  or  keeps  money  will  be  punished. 
All  private  trade  with  foreign  countries  is  forbidden,  and 
wares  so  imported  are  confiscated.  Of  course  all  trade  is 
carried  on  by  the  administration.  Transport  and  transporters 
are  to  be  under  the  direction  of  magistrates.  Taxes  are 
payable  in  kind.  For  all  Frenchmen  the  national  debt  owed 
to  them  is  extinguished,  but  debts  to  foreigners  are  to  be 
paid.  No  money  is  to  be  coined,  and  such  coined  money  as 
comes  to  the  national  community  is  to  be  used  to  buy  needed 
objects  from  foreign  nations. 

Thus  much  is  enough  to  give  an  idea  of  the  communists 
when  they  strove  to  become  a  political  power  in  the  seething 
pot  of  revolution,  in  an  inexperienced  and  misgoverned 
country.  Without  question,  the  evils  of  the  old  regime  in- 
tensified the  desire  of  equality  ;  but  we  can  well  conceive 
that  under  the  freest  institutions,  where  the  efforts  of  the 
citizen  to  acquire  property  were  entirely  uncontrolled,  the 
same  demands  for  equality  of  condition  and  the  same  confu- 
sion of  equality  of  rights  with  equality  of  possessions  might 
arise,  and  the  capitalists,  the  engrossers  of  land,  the  great 
merchants,  be  looked  upon  with  the  same  hatred  with  which 
the  hordes  of  laborers  in  France  regarded  the  upper  classes. 
As  we  trace  the  feelings  of  the  communists  further,  and  es- 
pecially in  later  years  when  they  have  come  to  be  more  dis- 
tributed over  Europe,  we  find  them  hating  priests  and  the 
Christian  religion  as  a  conservative  power ;  opposing  the 
family  because  it  is  an  independent  institution,  sustained  by 
affections  and  motives  of  its  own,  requiring  private  property 
for  its  existence  ;  and    opposing  the   succession  of  property 


318  POLITICAL   SCIENCE. 

in  the  family  because  it  is  the  support  of  the  family  and  of 
most  of  the  inequalities  in  society.  We  find  them  advocating 
the  most  immoral  principles  in  regard  to  sensuality  and  the 
overturning  of  society,  and  increasing  in  their  tendency  to 
spread  through  all  civilized  nations.  We  find  them,  and 
generally  the  least  sober  and  industrious  of  them,  demanding 
support  from  the  government  or  the  municipality  as  a  right, 
and  thus  in  fact  confounding  the  spheres  of  government  and 
society.  We  find  in  the  earlier  systems  that  as  all  are  work- 
ers there  can  be  no  literary  class,  no  self-moved  artists  or  re- 
ligious teachers.  Babceuf,  it  is  said,  wished  to  confine  know- 
ledge to  reading,  writing,  arithmetic,  and  some  acquaint- 
ance with  French  geography ;  and  declared  all  science  and 
art  to  be  evils. 

The  manifestation  of  communism  at  the   time  when  the 
Orleans  dynasty  was  overthrown,  in   1848,  de- 

Later  plans.  , 

serves  a  few  passing  words ;  the  more,  as  the 
dangers  to  which  property  was  thought  to  be  exposed  from 
this  source  seem  to  have  been  the  leading  cause  why  the 
middle  class  in  France  supported  the  second  empire.  M. 
Guizot,  in  a  brochure  entitled  "  de  la  democratic  en  France," 
gives  the  following  summary  of  the  system  of  the  well-known 
Proudhon.  "  All  men  have  a  right  and  the  same  right,  to 
happiness.  Happiness  is  the  enjoyment  of  all  the  good  things 
existing  or  possible  in  the  world,  whether  natural  and  primi- 
tive, or  progressively  created  by  the  intelligence,  and  the  la- 
bor of  man.  These  things,  or  the  means  of  procuring  them, 
are  become  the  special  and  perpetual  property  of  certain  men, 
families  and  classes.  Such  a  diversion  of  a  part  of  the  fund 
common  to  mankind  for  the  advantage  of  a  few  is  essentially 
contrary  to  justice.  Therefore  all  special  and  perpetual  ap- 
propriation of  the  good  things  which  confer  happiness  and 
of  the  means  for  procuring  these  good  things  must  be  abol- 
ished, in  order  to  insure  the  universal  enjoyment  and  equal 
distribution  of  them  among  men  and  among  all  successive 
generations  of  men."  But  how  is  it  possible  to  abolish 
property,  or  at  least  so  to  transform  it,  that,   as   it  regards 


LIBERTY   AND    EQUALITY   IN   CONFLICT.  319 

its  social  and  permanent  effects,  it  may  be  as  if  it  were 
abolished?  Here  the  leaders  of  the  social  republic  differ 
greatly  among  themselves.  But  all  the  schemes  originate 
in  the  same  design  and  tend  to  the  same  result — to  the 
abolition  or  the  nullification  of  personal,  domestic  and  he- 
reditary property,  and  of  all  institutions,  social  or  political, 
which  are  based  upon  personal,  domestic,  and  hereditary 
property. 

The  theories  of  such  philosophers  as  Proudhon,  the  experi- 
ments of  Cabet,  and  even  the  political  risings  of  a  Louis 
Blanc,  might  be  looked  on  without  dread  in  the  assurance 
that  society  cannot  be  moved  off  its  old  basis  ;  but  when  such 
theories  are  translated  into  the  threats  of  associated  workmen 
demanding  a  reconstruction  of  society,  they  mean  something 
immediately  serious.  The  "  International  association  of 
laborers,"  founded  in  1864,  arose  through  the  impression  made 
on  delegates  of  workmen  from  continental  countries  visiting 
the  exposition  at  London  in  1862,  and  noticing  the  compara- 
tive comfort  of  the  English  laborers.  It  was  suggested  appa- 
rently by  the  trades  unions,  and  had  for  one  of  its  objects  the 
abrogation  of  the  laws  in  different  countries  against  associa- 
tions and  coalitions.  This  was  the  first  time,  we  believe, 
when  laborers  began  to  act  together  on  a  large  scale  outside 
of  their  own  nationalities.  The  congress  of  Geneva  (in  Sept. , 
1866)  had  some  commendable  objects  ;  and  endeavors  there 
to  attack  the  right  of  property  were  put  down  by  the  French 
delegates.  At  the  congress  of  Brussels  in  1868,  to  which 
the  French  official  delegates  were  not  sent,  the  "  collectivity  " 
of  property  was  voted,  and  in  consequence  of  differences 
among  the  members  of  the  congress,  the  extreme  wing  formed 
a  separate  society  called  the  "  international  alliance  of  the 
socialistic  democracy,"  "  founded  on  the  basis  of  atheism, 
communism,  the  negation  of  patriotism,  and  the  universal  re- 
public." At  the  congress  of  Bale  (1869),  under  the  influence 
of  Karl  Marx  and  others,  extreme  opinions  were  in  the  as- 
cendant. The  programme  contemplated  "  the  abolition  of 
landed  property  ;  the  expropriation  of  actual  proprietors  by 


320  POLITICAL   SCIENCE. 

all  means  ;  the  solidarization  of  the  communes,  the  destruc- 
tion of  all  national  and  territorial  states."  * 

When,  after  the  defeat  at  Sedan  and  the  captivity  of  L. 
Napoleon,  the  commune  reigned  for  a  time  at  Paris,  and  the 
scenes  of  the  old  revolution  were  acted  over  again  on  a  small 
scale  and  with  less  fanaticism,  the  communists  had  no  oppor- 
tunity, if  they  wished,  to  put  their  ideas  into  a  practical  shape. 

§  104. 

The  system  of  a  community  of  goods  under  a  central  power 
.  ,    •,    r  is  very  much  like  slave-labor  organized  under 

Essential  evils  of  J  ° 

communism.  drivers    on  a  plantation,   only  that  the   slaves 

would  occupy  little  patches  of  ground  where  they  could  raise 
something  for  their  own  particular  use.  In  both  cases  the 
right  of  property,  the  right  of  contract,  the  right  of  free  loco- 
motion, the  right  to  use  some  of  their  time  in  gaining  instruc- 
tion, the  right  to  make  a  will — the  right  even  of  flight  from 
the  place  of  enforced  work,  are  taken  away  from  the  individ- 
uals who  come  into  this  condition  by  the  force  of  society  or 
their  own  free  consent.  If  the  latter,  we  have  the  self-sur- 
render of  Rousseau  almost  complete  in  the  generation  which 
institutes  such  a  form  of  society,  and  their  descendants  are 
nearer  still  to  slavery. 

Would  the  amount  of  productions  be  increased  under  such 
a  system  ?  What  Aristotle  objects  to  Plato's  theory  of  com- 
mon goods  (Polit.,  ii.,  I,  §  10,) — that  a  thing  receives  the  less 
attention  the  more  persons  hold  it  in  common,  because  people 
think  more  of  what  is  their  own  and  less  of  that  which  they 
hold  jointly  with  others, — may  not  always  be  true  ;  we  may 
conceive  of  forms  of  association  where  production  goes  on 
most  prosperously  on  account  of  the  managing  skill  of  some 
of  the  leading  members  ;  but  can  we  avoid  believing  that  the 
ennui  and  sense  of  monotony  in  having  to  remain  on  the  same 
spot,  the  positions  of  many  of  the  workers  ill-adapted  to  their 

*  Comp.  "  la  Commune  a  travers  l'histoire,"  by  E.  Bourloton  and 
E.  Robert,  Paris,  1872,  especially  the  chapter  entitled  Socialisme. 


LIBERTY   AND   EQUALITY    IN    CONFLICT.  32 1 

tastes  and  capacities,  the  carelessness  or  unskilfulness  of  the 
managers,  the  discontent  of  the  restless  who  would  sigh  for 
an  open  world, — that  such  causes,  to  say  nothing  of  more 
properly  industrial  ones,  would  greatly  abridge  production  ; 
and  that  the  power  of  self-recovery  after  disasters  would  be 
wanting  to  a  great  degree  in  such  a  system,  because  there- 
could  be  little  of  reserved  capital  ? 

And  when  we  take  into  account  the  loss  of  the  motives 
derived  from  personal  and  family  desires,  we  cannot  avoid 
finding  another  cause  for  the  ruin  that  would  inevitably  at- 
tend on  communistic  institutions.  The  personal  rights  may 
lead  to  self-interest,  but  that  self-interest  is  the  active  source  of 
a  vast  amount  of  good.  The  family  separates  its  members 
from  the  world,  but  who  can  doubt  that  motives  drawn  from 
the  family  will  give  a  stimulus  to  activity  the  most  efficient 
in  degree  ?  Production,  then,  must  be  greatly  diminished  by 
anything  which  takes  away  these  incentives  founded  on  af- 
fection and  kindred  ;  and  puts  a  great  community  of  goods 
with  enforced  labor  into  its  place.* 

But  especially  does  the  hostility  to  the  family, which  some 
of  the  communists  of  our  day  manifest,  and  the  tendency 
to  regard  marriage  as  a  convenient  and  transitory  arrange- 
ment between  a  man  and  woman,  reveal  their  moral  tone  and 
read  their  condemnation.  This  is  a  rock  which  has  stood 
since  the  world  began,  and  without  question, in  the  attack  on 
this  most  conservative  and  sacred  of  all  social  institutions, 
the  world,  in  general,  will  side  with  the  family  against  the 
communists  even  to  the  destruction  of  the  latter,  if  they 
should  force  on  an  encounter. 

*  Compare  what  Mr.  "Bancroft  says  (Hist,  of  the  U.  S.,  i.,  145) 
of  the  establishment  of  private  property  in  the  colony  of  Virginia, 
instead  of  holding  a  share  in  a  company.  When  this  change  was 
made  in  161 1,  the  most  marked  effects  followed.  "  So  long  as  in 
dustry  had  been  without  its  special  reward,  labor  had  been  reluctant- 
ly performed,  and  want  had  as  necessarily  ensued.  A  week  was 
wasted  in  doing  the  work  of  a  day,  and  thirty  men  laboring  for  the 
colony  had  accomplished  less  than  three  were  now  able  to  perform 
for  themselves." 
21 


322  POLITICAL   SCIENCE. 

The  atomistic  character  of  communism  condemns  it  as  be- 
ing contrary  to  nature  and  man's  destiny.  If  a  man  were  like 
an  animal,  with  no  continuous  and  progressive  existence  as 
a  race,  with  no  free  aspirations,  and  willing  to  be  guided  by  a 
master  who  doles  out  to  him  his  rations  of  food,  and  gives  him 
his  lodging  place  and  clothing,  only  forcing  him  to  work;  the 
force  and  inability  to  change  his  position  would  suit  his  nature. 
But  a  being  like  man  could  not  long  be  contented  in  such  a 
condition,  for  his  real  freedom,  his  power  to  choose  his  ends 
and  change  them,  his  power  to  go  from  place  to  place  would 
be  taken  away.  There  would  be  no  true  unity  in  such  a 
state  of  things,  no  enterprise,  no  intercourse  with  a  country 
or  with  the  world,  no  history,  no  forward  movement  toward 
a  common  goal  of  mankind. 

The  communistic  theories  are  built  on  the  tyranny  of  so- 
ciety over  its  members.  No  authority  in  despotical  states 
over  their  subjects  goes  so  far ;  no  authority  in  states  of  the 
antique  pattern  could  have  crushed  individual  rights  to  an 
equal  degree.  Liberty  is  destroyed,  that  equality  of  condi- 
tion may  take  its  place.  Equality  of  rights  is  divorced,  as 
far  as  it  exists,  from  personal  freedom.  Property  is  placed 
out  of  the  reach  of  the  individual,  and  yet,  as  between  com- 
munities or  between  states,  property  must  still  be  recognized. 
But  there  will  be  no  battles  pro  aris  et  focis. 

Yet  the  experiments  of  these  new  despotisms,  which  crush 
individuals  and  their  rights,  are  far  from  being  without  useful 
results.  They  reveal  to  us  that  the  selfishness  of  modern 
capitalists  and  landholders  may  be  in  part  responsible  for 
strifes  in  which  the  existence  of  governments  will  be  in  jeop- 
ardy ;  they  open  our  eyes  to  the  unfaithful  stewardships  of 
the  upper  classes.  They  show  that  unless  states  are  cemented 
together  by  something  outside  of  and  above  law  and  rights, 
society  may  fall  into  confusion  ;  that  kindly  feeling  and  sym- 
pathy are  necessary  for  social  union,  but  may  be  wanting 
and  cannot  be  supplied  by  constitutions  and  political  reforms. 
They  show  especially  the  importance  of  the  thrice  old  insti- 
tutions of  property  and  the  family,  the  very  attacks  against 


LIBERTY   AND   EQUALITY   IN   CONFLICT.  323 

which  prove  that  they  belong  to  the  necessary  development 
of  mankind.  Nor  can  we  doubt  that  a  revolution  abolishing 
or  even  weakening  them  would  be  short-lived,  and  its  authors 
be  held  in  abhorrence  through  all  the  periods  of  history. 

"  Quid  fas 
Atque  nefas  tandem  incipiunt  sentire,  peractis 
Criminibus.     Tandem  ad  mores  natura  recurrit 
Damnatos,  fixa  et  mutari  nescia. "  * 

*  There  is  an  extensive  literature  relating  to  the  subject  of  this 
chapter  with  much  of  which  I  am  not  familiar.  1  may  be  allowed  to 
refer  to  the  works  of  Dr.  Eugene  Jager,  Der  moderne  Socialismus, 
of  Karl  Marx,  Berlin,  1873,  and  to  his  Geschichte  der  socialen  Bewe- 
gung  u.  des  Socialismus  in  Frankreich,  Berlin,  1876.  The  work  of 
Baron  Joseph  Eotvijs,  "der  Einfluss  d.  herschenden  Ideen  des  19. 
Jahrhunderts  auf  den  Staat,"  translated  by  himself  from  his  own 
original  Hungarian,  although  by  no  means  confined  to  the  subject  of 
this  chapter,  bears  upon  it  by  showing  the  conflict  between  freedom 
and  equality. 


CHAPTER  VIII. 

THE  PUNITIVE  POWER   OF  THE  STATE. 

§  105. 
THE  punishments  inflicted  by  the  state  differ  greatly  from 
Punishment  and  the   reparation   or  redress  which  the  state  pro- 
redress.  vides   for     individuals.     Yet   it   often    happens 

that  the  same  act  of  a  wrong-doer  calls  for  the  sentence  of 
the  judicial  power  on  both  accounts.  Thus,  suppose  that  a 
man  has  committed  a  theft  or  has  assaulted  another :  he  may 
be  viewed  as  having  violated  his  obligations  correlative  with 
the  rights  of  others,  and  also  as  having  injured  the  state. 
For  his  treatment  of  a  specific  person  he  might  not  be  pun- 
ished, but  only  be  obliged  to  put  him  in  as  good  a  situation 
as  before — to  repair  an  injury  to  a  fellow-man.  But  the  act, 
if  repeated — that  is,  unless  some  motive  presented  to  him  or 
to  others  kept  them  from  committing  it  in  future — would  tend 
to  make  existence  in  the  state  less  desirable,  to  fill  society 
with  alarm,  and  to  cause  something  like  a  state  of  war  per- 
petual. If  there  were  an  army  of  invading  foes  on  the  bor- 
ders, all  ready  to  make  an  attack,  the  longer  the  time  before 
the  attack  the  more  distressing.  So  the  constant  expectation 
of  wrong  from  foes  of  social  order  is  a  destruction  of  public 
peace — a  single  act  of  violence  is  a  breach  of  the  peace. 

There  are  various  wrong  acts  which  excite  no  apprehension 
in  society  that  the  interests  of  the  whole  are  in  jeopardy. 
Such  are  breaches  of  contract,  and  many  wrongs  done  in  the 
way  of  business.  On  the  other  hand  there  are  wrongs  done 
to  society  which  do  not  affect  any  individual  in  particular. 
These  rise  in  importance  from  petty  disorders  which  a  single 
policeman  can  control,  through  all  the  grades  of  evil  to  high 
treason  or  the  attempt  to  destroy  the  very  existence  of  the 
state. 


THE  PUNITIVE   POWER  OF  THE   STATE.  325 

It  is  plain  from  this  exposition  that,  in  different  stales,  quite 
different  opinions  may  prevail  in  regard  to  the  incidence,  so 
to  speak,  of  forbidden  actions,  i.  c,  whether  in  particular 
cases  they  affect  individuals  only  or  a  community  and  indi- 
viduals, or  a  community  only.  There  are  imperfect  states, 
where  the  feeling  of  state  existence  is  not  strong,  but  family 
life,  or  life  in  a  small  community  of  kinsmen,  takes  the  place 
which  is  given  to  the  state  elsewhere.  It  is  not  strange  that 
in  such  communities  a  crime  like  homicide  is  estimated  chiefly 
in  its  consequences  to  the  family,  and  that  it  falls  to  the 
avenger  of  blood  to  pursue  the  offender  even  unto  death. 
And  hence  when  a  money  payment  took  the  place  of  requital 
from  an  injured  party,  the  composition  for  homicide  belonged 
to  the  family  of  the  slain  man.*  Nor  is  it  strange  that  penal- 
ties should  be  variously  assigned  to  wrong-doing  in  different 
states,  where  the  state  feeling  is  more  pronounced  ;  that  in 
one  the  individual,  in  another  the  body  politic,  should  be 
conceived  to  be  principally  injured  by  crime  ;  that  punish- 
ments should  vary  greatly  in  degree  according  to  the  nature  of 
the  state  ;  crimes  against  property,  for  instance,  being  more 
severely  visited  in  a  society  where  an  aristocracy  made  the 
laws,  than  where  the  people  made  them  ;  and  that  they  should 
change  with  new  experience,  with  increasing  humanity,  and 
increasing  proclivity  to  criminal  actions. 

A  single  instance  will  show  how  differently  offences  may 
be  viewed  by  different  nations.  In  the  case  of  theft  (/cA.o7r>;) 
at  Athens  it  was  in  the  power  of  the  injured  person  to  pros- 
ecute ;  but  there  was  also  a  public  prosecution  for  this  same 
offence.  If  the  private  accuser  got  his  case,  he  could  recover 
twice  the  value  of  the  thing  stolen,  in  case  the  thing  itself 
came  back  into  his  hands.      Otherwise  it  is  said,  he  might 

*  It  seems  to  be  altogether  just,  that  the  reasons  for  compen- 
sating a  man  for  an  injury  brought  upon  him  by  the  carelessness  of 
others,  should  be  applied  for  the  benefit  of  his  family,  when  he  is  killed 
not  by  carelessness  but  by  violence.  The  wrong-doer  ought  to  be 
punished  and  be  compelled  also  to  make  reparation  to  those  who 
suffer  by  his  evil  deed. 


326  POLITICAL   SCIENCE. 

recover  tenfold,  and  the  criminal,  at  the  end  of  the  same 
suit,  as  an  additional  penalty  inflicted  by  the  court,  might  be 
kept  in  the  stocks  for  several  days  and  nights.  Here  the 
payment  of  tenfold  the  value  of  the  object  stolen  is  more 
than  a  reparation.*  It  looks  like  confusing  public  and  pri- 
vate law.  At  Rome  theft  was  looked  upon  as  a  breach  of 
an  obligation,  and  the  penalty  or  sum  paid  to  the  injured 
person  was  fixed,  besides  restitution  of  the  stolen  object 
at  two-fold,  or,  it  might  be,  at  three  or  four-fold  the  worth  of 
the  thing  stolen.  By  the  law  of  the  twelve  tables  for  a  fur- 
turn  manifestum  the  penalty  was  capital  (in  the  Rome  sense), 
but  afterwards,  punishment,  properly  speaking,  ceased,  and 
four  times  the  value  of  the  stolen  property  was  allowed  to 
the  injured  party.  Here  again  we  have,  if  not  a  confusion, 
a  blending  of  the  public  and  private  purposes  of  law.f 

But  turning  from  these  cases  where  a  private  person  sus- 
tains a  direct  injury,  while  the  public  welfare  is  conceived 
also  to  be  attacked,  let  us  take  a  case  where  no  individual 
suffers,  as  for  instance  where  an  obstruction  is  put  on  a  rail- 
road track,  and  the  wrong-doer  is  taken  in  the  act  before  any 
harm  is  done.  Here  is  an  attempt  to  commit  a  crime,  which 
might,  if  successful,  bring  upon  multitudes  a  horrible  kind 
of  death.  Why  is  this  act  punished  ?  No  injury  is  done. 
The  infliction  of  evil  then  is  not  the  only  reason  why  men 
feel  that  punishment  is  due.  The  intention  also  is  taken  into 
account.  But  no  intention  of  injuring  an  individual,  if  unex- 
ecuted and  merely  mental,  could  ever  be  conceived  of  as  fur- 
nishing reason  for  reparation  from  him  who  harbors  the 
guilty  purpose.  Nor  need  there  have  been,  in  the  case  sup- 
posed, an  intention  to  injure  any  one  in  particular,  so  that 
whatever  crime  there  was  it  did  not  reach  a  specific  person. 
On  the  other  hand,  whether  a  person  intended  or  not  to 
cheat  another  in  a  private  transaction  like  a  contract,  he  is 
equally  bound  to  pay  damages  for  non-fulfilment ;  his  inten- 

*  Comp.  Meier  u.  Schoin.,  Att.  Proa,  p.   358. 
f  Comp.  Gaius,  Instit.,  iii.,  190. 


THE   TUNITIVE   POWER   OF   THE   STATE.  327 

tions  here  are  not  of  course  taken  into  account.  We  con- 
clude that  estimate  of  intention  belongs  mainly  to  crimes  or 
public  wrongs,  and  not  to  private  injuries. 

By  this  is  not  meant  that  crime,  for  its  existence,  requires 
a  malevolent  affection  of  some  sort.  Another  state  of  mind 
also  is  a  fruitful  source  of  crime — that  which  pays  little  at- 
tention to  the  results  of  actions,  which,  while  it  is  in  the 
power  of  the  person  concerned  to  judge  what  may  follow, 
takes  no  account  of  the  obligation  lying  on  us  all  to  do  noth- 
ing out  of  which  injuries  to  others  may  grow.  Intention  to 
do  evil  and  criminal  negligence  are  the  two  states  of  mind, 
without  one  of  which  crime  cannot  exist.  Negligence,  how- 
ever, is  a  negation  of  carefulness  ;  it  maybe  gross  or  it  may  be 
slight.  Culpa  lata  and  levis  are  the  two  degrees  in  Roman 
law,  and  each  of  them  can  have  its  degrees  also.  To  throw 
a  heavy  body  from  a  roof  overhanging  a  public  highway  in 
the  busy  parts  of  the  day,  without  giving  notice  by  a  cry, 
would  imply  gross  negligence,  and  would  show  that  a  person 
was  indifferent  to  the  lives  and  limbs  of  his  fellow-men  ;  but 
to  blast  a  rock  without  notice  in  a  private  field  would  be 
slight  negligence,  if  any  at  all,  because  no  one  is  expected 
to  be  in  the  field. 

Hence  no  crime  can  be  committed  by  brute  animals,  by 
little  children,  by  insane  or  half-witted  persons.  We  kill  the 
animal  that  gores  a  man,  we  shut  up  the  insane  and  the  idioti- 
cal,  but  never  call  it  punishment  or  conceive  of  it  as  such. 

It  is  unnecessary  here  to  enter  into  the  classes  of  offences 
against  the  state  or  the  public  welfare.  It  is  enough  to  say 
that  besides  mala  in  se  or  those  which  ordinary  moral  judg- 
ments pronounce  wrong,  mala  prohibita  also  are  included  in 
criminal  legislation,  together  with  the  intentional  failure  to 
do  that  which  is  required.  The  state,  being  a  permanent 
body  possessed  of  long  experience,  has  alone  the  wisdom  to 
judge  what  ought  to  be  done  and  left  undone.  The  observ- 
ance of  law  is  a  necessary  duty  of  the  citizen.  When  he  fails 
of  this  duty  he  does  that  which  would,  if  allowed  to  go  unre- 
buked,  make  law  nugatory  and  greatly  injure  society. 


328  POLITICAL   SCIENCE. 

§  106. 
All  we  have  said  is  but  preparatory  to  the  enquiry  into  the 
punishment  and  grounds  and  the  right  of  punishment.     After 
chastisement.  finishing  that  enquiry  we  shall  consider  punish- 

ment in  its  forms  and  its  results.  We  remark,  first,  that  all 
physical  evil  inflicted  for  a  fault  or  a  want  of  subordination, 
on  an  animal  or  on  a  child  in  a  family,  has  in  view,  at  least  the 
end  of  impressing  on  the  memory  the  evil  which  is  connected 
with  a  certain  action,  and  so  of  preventing  the  repetition 
of  that  action.  There  is  no  other  way  of  managing  a  horse, 
save  by  an  occasional  use  of  the  whip.  The  driver  knows 
what  he  intends,  and  the  horse  knows  just  as  well.  Here  we 
may  be  asked  what  right  is  there  in  a  man  to  inflict  physical 
pain  for  a  good  end,  either  on  a  child  or  on  an  animal  ?  In 
the  case  of  an  animal,  a  being  is  to  be  considered  which  at 
once  is  property  and  is  capable  of  enjoyment.  It  is  assumed 
that  animals  may,  according  to  the  arrangements  of  nature, 
that  is  of  God,  be  made  subservient  to  the  reasonable  ends  of 
the  human  race.  But  the  domestic  animals  cannot  fulfil  these 
ends  without  a  certain  government  by  means  of  a  limited  num- 
ber of  motives, which  appeal  to  their  sense  of  pleasure  and  pain, 
and  which  they  can  associate  with  particular  past  actions  of 
their  own.  If  there  be  a  right  to  use  them  for  human  pur- 
poses, there  is  a  right  to  train  them  by  such  motives  for  the 
best  accomplishment  of  these  purposes.  This  is  not  a  pro- 
vision— if  it  be  a  natural  provision — of  a  one-sided  character, 
but  the  good  of  both  the  animal  and  the  man  are  secured. 
The  animal,  it  can  scarcely  be  doubted,  has  far  higher  enjoy- 
ment of  life,  on  the  whole,  than  he  would  have  in  his  wild 
state  ;  the  number  in  the  species  is  increased  ;  the  young  are 
better  off;  for  it  is  for  the  owner's  interest  that  his  beasts  be 
well  taken  care  of,  if  he  is  not  otherwise  interested  in  their 
physical  good.  Thus  the  relation  of  man  and  of  the  beasts 
which  he  governs  by  motives  is  both  founded  in  their  nature 
and  in  benevolent  purpose,  and  could  not  exist  without  the 
moral  propriety  of  some  kind  and  degree  of  discipline.     The 


THE   PUNITIVE    POWER   OE   THE   STATE.  329 

prohibition  of  cruelty  to  animals,  which  has  been  noticed  for 
another  purpose,  shows  that  mere  or  gross  infliction  of  pain 
is  regarded  by  society  as  a  moral  evil. 

The  child  is  put  into  the  hands  of  those  who  will  love  him 
most,  not  as  a  possession,  but  to  be  trained  up  for  all  the  good 
within  the  reach  of  a  human  soul.  At  first  he  is  an  animal 
with  feeble  moral  perceptions,  differing  from  brutes  in  this 
chiefly — that  for  his  sake  mainly,  and  not  for  the  parent's, 
the  relation  is  instituted.  He  must  be  governed  by  the  su- 
perior wisdom  and  strength  of  the  parent,  in  order  to  make  him 
subordinate,  to  associate  in  his  mind  wrong  and  the  desert  of 
evil,  to  teach  him  what  is  right,  to  form  his  habits  and  char- 
acter. In  the  early  part  of  life  it  seems  to  be  impossible  to 
control  children  and  make  them  wise  without  some  kind  of 
punishment  or  correction.  They  have  commands  given  to 
them.  If  these  are  disobeyed,  how  is  the  evil  of  wilfulness 
and  unrestrained  self-assertion  to  be  kept  down,  except  by  the 
joint  action  of  moral  teaching  and  penalty  administered  by 
those  that  love  them  best.  It  is  found  also  that  penitence, 
an  humbled,  subdued  spirit,  never  appears  in  a  child  so  deci- 
dedly as  after  kind  parental  correction. 

Here    the    only  end  is  correction   or    chastisement — words 

whose  derivation  illustrates  an  intended  effect  of  punishment 

— the  one  denoting  originally  the  act  of  making  completely 

straight,  of  bringing   into  a  condition  of  rectitude,  and  the 

other  that  of  making  the  subject  morally  pure,  or  innocent.* 

But  it  may  be  asked  at  this  stage  of  our  discussion,  whether 

the  right  of  the  father  to  inflict  pain  is  fairly  accounted  for  by 

his  superior  wisdom  in  judging  of  what  is  best  for  the  child, 

or  by  his  parental  relation  and  that  which  is  included  under 

it ;  or  how  we  are  to  explain  a  right  which  all  concede  to  be 

vested    in    him.       Superior    wisdom,    certainly,    would    not 

authorize  any    stranger   to   correct  another    man's   children. 

What  is  there  in  the  parental  relation  which  gives  this  right  ? 

The  answer  depends  on  the  nature  of  moral  government,  and 

*  Castus  in  Latin  has  a  far  wider  sense  than  its  derivative  chaste 
in  English. 


330  POLITICAL   SCIENCE. 

will  be  most  conveniently  answered  when  we  come  to  con- 
sider the  grounds  for  punishing  on  the  part  of  the  state  and 
its  right  of  punishing. 

§  107. 
The  principal  reasons  for  the  state's   being  invested  with 
why  should  the  this  power  that  have  been  brought  forward,  arc 

state  have   punitive 

power?  the  following : 

1.  That  by  visiting  the  transgressor  with  some  deprivation 
of  something  desirable,  the  state  brings  him  to  reflection  and 
makes  him  better.      The  main  end  is  correction. 

2.  That  it  is  necessary  for  the  state's  own  existence  to  pun- 
ish, in  order  to  strike  its  subjects  with  awe  and  deter  them 
from  evil-doing. 

3.  That  to  do  this  is  necessary  for  the  security  and  protec- 
tion of  the  members  of  the  state.  These  two  reasons  are  in 
principle  one  and  the  same. 

4.  That  the  penalty  is  an  expiation  for  the  crime. 

5.  That  the  state  receives  a  satisfaction,  by  penalty,  from 
the  wrong-doer,  or  is  put  in  as  good  a  situation  as  before. 

6.  That  in  punishment  the  state  renders  to  evil-doers  their 
deserts. 

The  theory  that  correction  is  the  main  end  of  punishment, 
various  ends  of    will  not  bear  examination.      In  the  first  place, 

punishment  consid-  .  .     ,  ,  ... 

ered.  1.  Correction,  the  state  is  not  mainly  a  humane  institution  :  to 
administer  justice  and  protect  the  society,  are  more  obvious 
and  much  higher  ends,  and  the  corrective  power  of  state 
punishments  has  hardly  been  noticed  by  legislators,  until 
quite  modern  times,  as  a  thing  of  prime  importance.  In  the 
second  place,  the  theory  makes  no  distinction  between  crimes. 
If  a  murderer  is  apparently  reformed  in  a  week,  the  ends  of 
detention  in  the  reformatory  home  are  accomplished,  and  he 
should  be  set  free  ;  while  the  petty  offender  against  order  and 
property  must  stay  for  months  or  years  in  the  moral  hospital, 
until  the  inoculation  of  good  principles  becomes  manifest. 
And,  again,  what  if  an  offender  should  prove  to  be  incurable  ? 
Should  he  not  be  set  at  large,  as  being  beyond  the  influences 


THE   PUNITIVE   POWER    OF   THE   STATE.  33 1 

of  the  place  ?  Still  further,  what]  kind  of  correction  is  to 
be  aimed  at  ?  Is  it  such  as  will  insure  society  against  his  re- 
peating his  crime  ?  In  that  case,  it  is  society,  and  not  the 
person  himself,  who  is  to  be  benefited  by  the  corrective  pro- 
cess. Or  must  a  thorough  cure,  a  recovery  from  selfishness 
and  covctousness,  an  awakening  of  the  highest  principle  of 
the  soul  be  aimed  at  ;  an  established  church,  in  short,  be  set 
up  in  the  house  of  detention  ? 

2.  The  explanation  that  the  state  protects  its  ozun  existence 

by  striking  its  subjects  with  awe  and  deterring 

2.  Self-protection.  ....  .  ,  .    . 

them  from  evil-doing  through  punishment,  is 
met  by  admitting  that,  while  this  effect  is  real  and  important, 
it  is  not  as  yet  made  out  that  the  state  has  a  right  to  do 
this.  Crime  and  desert  of  punishment  must  be  presupposed 
before  the  moral  sense  can  be  satisfied  with  the  infliction  of 
evil.  And  the  measure  of  the  amount  of  punishment,  sup- 
plied by  the  public  good  for  the  time,  is  most  fluctuating  and 
tyrannical  ;  moreover,  mere  awe,  unaccompanied  by  an 
awakening  of  the  sense  of  justice,  is  as  much  a  source  of 
hatred  as  a  motive  to  obedience. 

3.  The  same  objection  lies  against  the  reason  for  punish- 

3.  Protection  of  ment  that  it  is  needed  to  protect  the  innocent  in- 
mdividuais.  habitants  of  a  country  by  the  terrors  which  penal 
law  presents  to  evil-doers.  The  end  is  important,  but  cer- 
tainly great  wrong  may  be  done  in  attempting  to  reach  it. 
The  inquiry  still  remains  why,  for  this  end,  should  pain  or 
loss  be  visited  on  an  evil-doer. 

We  notice  here,  however,  another  objection  against  the 
sufficiency  of  these  two  last  explanations,  which  seems  to  be 
itself  weak,  if  not  sophistical.  The  ends  named  contem- 
plate future  crime.  Now  it  is  said,  Why  should  punishment 
be  inflicted,  not  on  account  of  the  evil  of  an  act  already  done, 
but  on  account  of  another  evil  act  that  may  or  may  not  be 
done  in  the  future  ?  In  this  way  we  go  on  with  our  work  of 
punishing  in  view  of  a  future  condition  of  things  and  not  of 
the  present.  To  this  objection  it  may  be  replied,  as  Harten- 
stein  has  done  (Grundbegr.  der  ethisch.  Wissenschaften,  p. 


OJ- 


POLITICAL   SCIENCE. 


263),  that  it  contains  a  confusion  of  the  motive  for  threaten- 
ing penalty  in  the  law  with  the  object  of  the  punishment. 
The  motive  is  to  guard  against  possible  future  transgressions  ; 
the  object  is  the  crime  itself.  Moreover  if  it  be  right  to 
punish  at  all,  and  right  to  protect  society  against  evil-doers, 
why  may  not  both  be  united  in  the  same  act  ?  If  it  were 
not  felt  to  be  right  to  punish,  there  could  be  no  preventive 
and  exemplary  power  in  the  threatened  penalty. 

This  end,  then,  the  protection  of  the  state  and  of  the 
people  by  the  fear  held  out  in  the  law,  is  a  right  and  proper 
end,  when  once  the  power  of  the  state  to  inflict  penalties  is 
justified  on  other  grounds,  but  not  before. 

4.  Another  end  of  punishment  that  has  been  put  forward 
takes  a  more  religious  form  than  those  that  have 

4.  Expiation.  .  . 

been  already  considered.  It  is  to  be  regarded 
as  an  expiation  of  the  crime,  made  in  order  that  divine 
wrath  or  punitive  justice  may  not  fall  on  society.  The  soli- 
darity of  a  nation  involves  the  whole  in  the  guilt  of  an  indi- 
vidual member,  and  it  is  necessary  by  an  expression  of  com- 
mon feeling,  which  shows  that  the  body  does  not  sympathize 
with  the  sinful  member,  to  clear  itself  of  defilement,  to  save 
itself  from  being  obnoxious  to  vengeance,  or  from  evil  viewed 
as  the  result  of  divine  displeasure.  This  feeling  was  awakened 
in  some  ancient  peoples  when  great  crimes  against  man  or 
divine  majesty  were  committed.  We  see  expressions  of  it  in 
the  Jewish  scriptures  and  in  pagan  literature,  especially  in 
the  writers  of  the  best  Athenian  age.  "The  voice  of  thy 
brother's  blood  crieth  unto  me  from  the  ground,  and  now 
thou  art  cursed  from  the  earth,  which  hath  opened  her  mouth 
to  receive  thy  brother's  blood  from  thy  hand  "  (Gen.,  iv.,  10, 
1 1).  After  mention  of  gross  immoralties  we  find  in  Leviti- 
cus (xviii.,  24,  25)  these  words:  "For  in  all  these  the 
nations  are  defiled,  which  I  cast  out  before  you,  and  the  land 
is  defiled  :  therefore  I  do  visit  the  iniquity  thereof  upon  it, 
and  the  land  vomiteth  out  her  inhabitants."  So  when  a 
grievous  pestilence  afflicted  Thebes,  it  could  be  expiated,  or 
the  people  be  freed  from  the   guilt  of  it,  only  by  finding  out 


THE   PUNITIVE   POWER   OE   THE   STATE.  333 

the  murderer  of  La'ius.  When  found  he  must  be  sent  into 
exile,  or  blood  be  repaid  with  blood  ;  "  because  this  blood- 
guiltiness  is  like  a  storm  afflicting  the  state."  (Soph.,  Oed. 
Tyr. ,  101.)  So  also  Aesch.,  Choeph.,  394-396,  says  that 
"  it  is  the  law  for  bloody  drops  spilt  on  the  ground  to  demand 
new  blood." 

These  antique  expressions  of  the  moral  sense,  common  to 
men,  connect  divine  and  human  law  together,  but  no  especially 
new  rational  basis  of  punishment  is  disclosed  by  them.  Pun- 
ishment was  demanded,  for  so  great  a  crime  as  murder,  by 
divine  righteousness  ;  the  guilt  or  liability  to  suffer  the  conse- 
quences of  the  crime,  rests  on  the  land,  and  the  nation  must  do 
what  it  can  to  remove  that  guilt  from  itself  by  discovering  the 
individual  criminal;  or  in  some  way  an  expiation,  a  piacu- 
lar  sacrifice,  recognizing  at  once  divine  righteousness  and 
placability,  must  be  made  which  divine  justice  will  accept. 
One  may  say  that  the  state,  according  to  the  conceptions  of 
ancient  times,  was  involved  in  the  guilt  of  crimes  committed 
on  its  soil,  as  indeed  it  often  is  in  fact ;  but  the  rites  expiatory 
of  guilt  simply  imply  a  desert  of  the  punishment,  which  the 
state  derives  from  the  crime  of  the  criminal. 

5.  Nor  can  it  be  regarded  as  a  sufficient  explanation  of  the 
state's  punishing  power,  that  in   this    way   the 

5.  Satisfaction.  .  .  .  ... 

state  is  satisfied,  or  is  put  in  as  good  a  situation 
as  before  the  crime.  Satisfaction  may  mean  fulfilling  the  de- 
sire of  a  person,  or  making  him  a  compensation  equivalent  to 
a  debt  or  a  wrong.  In  the  first  or  more  subjective  sense  it  is 
fluctuating,  and  no  explanation  of  the  ground  of  punishing 
can  be  derived  from  the  fact  of  its  satisfying  a  spirit  of  ven- 
geance or  of  wrath.  Still  less  is  there  any  measure  to  be 
derived,  even  from  the  nobler  moral  sentiments,  to  determine 
the  proper  wages  of  evil-doing — how  much  suffering  ought  to 
be  a  satisfaction  for  a  certain  kind  or  degree  of  crime.  In 
the  other  sense,  the  objective  one,  there  may  be  important 
truth  couched  under  the  expression  of  paying  a  debt  of  justice 
to  the  state  ;  of  satisfying  the  claims  that  the  state  has  against 
the  transgressor;   or,  under  the  expression  that  the  penalty 


334  POLITICAL   SCIENCE. 

suffered  for  crime  has  put  the  state  in  as  good  a  condition  as 
it  was  before.  The  crime  was  an  injury  to  the  state.  But 
why  was  it  ?  Because  it  impaired  the  state's  authority  in  the 
minds  of  other  subjects,  or  manifested  its  weakness,  or  tended 
in  some  other  way  to  encourage  the  evil  and  discourage  the 
good.  But  now  the  state,  by  an  assertion  of  its  power  over 
the  individual,  has  rehabilitated  itself.  This  may  be  true,  but 
what  is  this  except  the  deterring  of  evil-doers,  the  making  of 
one  an  example  for  the  benefit  of  the  many  ?  And  the  ques- 
tion still  recurs,  whether  the  state  has  such  a  power,  and  in 
the  exercise  of  it  what  the  state  may  do. 

6.   The  theory  that  in  punishing  an  evil-doer  the  state  ren- 
ders  to  him  his  deserts,  is  the  only  one  that 

6.  Retribution.  , .  .     -  ,       .  _ 

seems  to  have  a  solid  foundation.  It  assumes 
that  moral  evil  has  been  committed  by  disobedience  to  right- 
ful commands;  that  according  to  a  propriety  which  commends 
itself  to  our  moral  nature  it  is  fit  and  right  that  evil,  physical 
or  mental,  suffering  or  shame,  should  be  incurred  by  the 
wrong-doer;  and  that  in  all  forms  of  government  over  moral 
beings  there  ought  to  be  a  power  able  to  decide,  how  much 
evil  ought  to  follow  special  kinds  and  instances  of  transgres- 
sion. Or,  in  other  words,  the  state  has  the  same  power  and 
right  to  punish  which  God  has  ;  it  is,  in  fact,  as  St.  Paul  calls 
it,  a  minister  of  God  to  execute  wrath  upon  him  that  doeth 
evil.  But  it  takes  this  office  of  a  vicegerent  of  God  only 
within  a  very  limited  sphere  and  for  special  ends.  It  looks 
only  at  the  outward  manifestations  of  evil  ;  it  has  no  power 
to  weigh  the  absolute  criminality  of  actions  ;  and  if  it  could 
measure  guilt  in  purpose  or  thought  with  accuracy,  this  would 
not  justify  its  going  beyond  positive  acts  hurtful  to  society  ; 
because,  even  in  God's  administration,  this  is  not  a  world  of 
retribution.  Its  province  is  confined  to  such  actions  as  do 
harm  to  the  state  or  to  interests  which  the  state  exists  to  pro- 
tect. As  the  head  of  the  family  has  a  chastising  power  only 
within  his  family,  so  the  state  is  not  called  upon, — is  even  for- 
bidden,— to  exercise  a  general  moral  government  over  the 
world.    I  would  not  say  that,  within  these  limits  of  actions  not 


THE   PUNITIVE   POWER   OF   THE   STATE.  335 

simply  wrong  but  hurtful  to  the  state's  interests,  it  is  always 
bound  by  duty  to  God  to  punish,  but  only  that  it  is  permitted 
to  punish.  There  is  nothing  wrong,  but  something  right,  in 
its  sanctions,  judgments,  and  inflictions.  It  is  presupposed 
that  punishment  is  put  into  its  hands  and  may  be  rightfully 
administered  ;  but  its  object  in  punishing  is  not,  in  the  first  in- 
stance, to  punish  for  the  sake  of  punishing,  because  so  much 
wrong  demands  so  much  physical  suffering,  but  to  punish — 
punishment  being  in  the  circumstances  otherwise  right — not 
directly  for  the  ends  of  God's  moral  government,  but  for  ends 
lying  within  and  far  within  that  sphere.  It  is,  in  fact,  very 
restricted  in  its  sphere.  It  punishes  acts,  not  thoughts  ;  in- 
tentions appearing  in  acts,  not  feelings  ;  it  punishes  persons 
within  a  certain  territory  over  which  it  has  the  jurisdiction, 
and  perhaps  its  subjects  who  do  wrong  elsewhere,  but  none 
else  ;  it  punishes  acts  hurtful  to  its  own  existence  and  to  the 
community  of  its  subjects  ;  it  punishes  not  according  to  an 
exact  scale  of  deserts,  for  it  cannot,  without  a  revelation,  find 
out  what  the  deserts  of  individuals  are,  nor  what  is  the  relative 
guilt  of  different  actions  of  different  persons. 

It  may  be  asked  why,  on  this  retributive  theory,  there  should 
not  be  retributive  rewards  as  well  as  penalties.  The  answer 
is  that  every  citizen  is  rewarded  for  his  obedience  by  the  se- 
curity of  his  rights,  and  by  a  participation  in  the  general  wel- 
fare, as  every  detected  wrong-doer  is  shut  out  from  these 
benefits.  Still  further,  every  criminal  punished  increases  the 
security  of  the  loyal  citizens  ; — so  that  we  see  that  the  crimi- 
nal is  not  paid  back  so  much  pain  without  respect  to  the 
observers  of  righteous  law,  but  in  the  complex  of  reasons  for 
punishment  the  righteous  get  their  benefit,  while  justice  is 
done  to  the  evil. 

We  add  here,  that  criminal  laws,  apart  from  these  effects, 
set  up  a  moral  standard  of  social  morality  and  justice,  which 
is  an  education  into  reflection  for  many  who  otherwise  might 
be  reckless  and  unthinking.  As  a  testimony  against  evil 
within  a  certain  sphere,  they  have  great  use.  But  they  could 
not  preach  righteousness  by  simply  affirming  a  thing  to  be 


336  POLITICAL   SCIENCE. 

wrong  or  unjust,  for  our  natural  measures  of  wrong  always 
connect  with  actions  a  desert  of  evil. 

Laying  it  down  thus,  that  the  state  can  punish  evil  because 
evil  deserves  punishment,  we  are  able  in  a  theory  of  state 
punishments  to  include  a  variety  of  purposes  which  the  act 
or  mode  of  so  doing  may  serve.  A  wise  criminal  code  and 
its  administration  will  aim  at  the  correction  of  offenders,  and 
in  the  process  of  chastisement,  at  such  an  exhibition  of  justice 
and  kindness  united  as  may  subdue  the  hearts  and  affect  the 
life  of  offenders.  But  if  there  were  absolutely  no  hope  of  their 
improvement  in  particular  cases,  the  punishment  ought  still 
to  go  on,  and  with  the  more  reason.  So  again  penal  law 
ought  to  aim  at  deterring  from  crime  those  who  are  not  as  yet 
ruilty  of  crime.  It  declares  the  difference  between  good  and 
evil  within  its  sphere,  and  treats  the  two  differently,  so  as  to 
present  motives  to  the  whole  society.  But  if,  by  making  ex- 
amples of  offenders  the  state  does  not  diminish  their  number, 
that  is  no  reason  for  ceasing  to  punish.  Its  very  existence 
and  the  existence  of  all  the  interests  it  superintends  are  at 
stake,  and  it  must  keep  up  its  moral  government  until  it 
overcomes  wrong-doers  or  succumbs  to  the  power  of  evil. 

Here  we  may  add,  by  the  way  of  supplement,  that  the  social 
Social  contract  fails  contract  shows  its  weakness,  especially  in  its  ex- 

to    explain    punish-  .  .  .  . 

mem.  planations  ol   the  right  of  punishing,  as  vested 

in  the  state.  For  Rousseau's  explanation  of  the  penalty  of 
death  see  §  59.  An  eminent  and  humane  writer  on  criminal 
law  soon  afterwards  took  the  same  ground  with  Rousseau. 
The  contrat  social  appeared  in  1754  ;  the  "  dei  delitti  ct  dellc 
pene  "  of  the  Marquis  Beccaria,  first  saw  the  light  ten  years 
afterward.  In  this  book,  which  has  done  more  to  reform 
criminal  laws  and  methods  than  any  other,  the  author  says 
(§  ii.)  that  "no  man  has  made  a  gratuitous  gift  of  part  of  his 
own  liberty  in  view  of  the  public  good  ;  this  chimera  exists 
only  in  romances.  If  it  were  possible,  each  of  us  would  wish 
that  the  pacts  that  bind  the  others  did  not  bind  us.  The  laws 
are  the  conditions  under  which  independent  and  isolated  men 
unite  in  society,  weary  of  living  in  a  continual  state  of  war, 


THE   PUNITIVE   POWER   OF  THE   STATE.  337 

and  of  enjoying  a  liberty  rendered  useless  by  the  uncertainty 
of  preserving  it.  The  sum  of  all  these  portions  of  liberty,  sac- 
rificed to  the  good  of  each,  forms  the  sovereignty  of  a  nation, 
and  the  sovereign  is  the  legitimate  depository  and  adminis- 
trator of  them  ;  it  was,  therefore,  necessity  that  constrained 
men  to  yield  up  a  part  of  their  own  liberty.  It  is  then  certain 
that  each  one  wishes  to  put  in  the  public  deposit  only  the 
least  portion  possible,  so  much  only  as  can  be  sufficient  to 
induce  others  to  defend  him.  The  aggregate  of  these  small- 
est possible  portions  forms  the  right  of  punishing.  Every- 
thing beyond  is  abuse,  not  justice  ;  fact,  not  right."  (Comp. 
§  iii.  end.) 

This  theory  has  many  vulnerable  points.  Thus  the  power 
supposed  to  be  resigned  by  the  individual,  is  the  power  of 
punishing  another  for  invasions  of  his  rights.  But  what  sur- 
render can  explain  punishment,  properly  so  called,  in  an  or- 
ganized society  ;  that  is,  the  power  of  visiting  with  evil  not  the 
invaders  of  personal  rights  but  the  disturbers  of  the  public 
peace  and  welfare  ?  This  did  not  and  could  not  exist  until  or- 
ganized society  existed.  As  for  the  penalty  of  death,  we 
have  seen  that  this  has  its  special  contradictions  of  the  theory 
in  question. 

<^  108. 

We  now  propose  to  ourselves  to  append  a  few  other  opinions 
n  .  .  of  the  ancient  world  and  of  modern  thinkers  in 

Opinions  on  pen- 

aity.  1.  Ancient.  regar(j  to  the  nature  and  design  of  punishment 
in  the  state.  It  will  be  seen  that  the  ancients  never  questioned 
either  the  authority  or  the  duty  of  the  state  to  visit  trans- 
gressions of  state  law  with  some  kind  of  evil ;  that  they  did 
not  always  draw  the  same  lines  with  modern  legislation  be- 
tween public  and  private  wrongs  ;  and  that  the  same  ends  of 
penalty  which  we  have  advocated  appear  in  their  works  also. 
The  modern  opinions  are  much  more  at  variance  with  one 
another,  being  conclusions  from  divers  political  and  ethical 
principles. 

22 


338  POLITICAL  SCIENCE. 

It    is    worthy  of  notice   that  in   the  Hebrew  Scriptures  a 
variety  of  ends  to  be  subserved  by  punishment 

In  the  Scriptures.  .        „  ,  .     .  . 

are  spoken  or.  Ihe  religions  view  that  a  land 
or  a  nation  is  involved  in  the  crimes  of  individuals,  and  that 
guilt  rests  on  the  community,  unless  it  is  removed  or  expiated 
by  the  punishment  of  the  offender,  appears  in  passages 
already  cited,  and  in  many  others.  Thus  through  the  whole 
of  the  twenty-second  chapter  of  Ezekiel  there  is  a  most  vivid 
picture  of  wide-spread  and  frightful  immoralities,  which  bring 
down  divine  judgments  upon  the  whole  community.  The 
prophets,  the  priests,  the  princes,  the  common  people,  each 
class  has  its  own  peculiar  corruption  (vv.  24-29).  God  in 
vain  seeks  for  a  righteous  man,  who  could  stand  in  the 
breach,  and  by  his  intercessions  save  the  land  from  destruc- 
tion (v.  30).  Again,  the  disciplinary  or  corrective  effect  of 
punishment,  God's  fatherly  treatment  both  of  individuals 
(Prov.,  iii.,  11)  for  their  good,  and  of  the  nation  or  of  the 
better  parts  of  it,  is  more  than  once  emphasized,  especially 
in  the  prophets.  "  Behold,  I  have  refined  thee,  but  not  as 
silver.  I  have  chosen  thee  (or  proved  thee)  in  the  furnace 
of  affliction."  (Isaiah  xlviii.,  10.)  In  fact,  passages  in  the 
same  strain  abound  in  the  later  books.  The  preventive  or 
exemplary  force  of  punishment,  as  dictating  the  criminal 
laws,  is  set  forth  in  such  passages  as  Deut,  xiii.,  II,  "  and 
all  Israel  shall  hear  and  fear  and  do  no  more  such  wicked- 
ness "  (where  the  penalty  for  idolatry  is  spoken  of),  and 
in  other  places  of  the  same  book,  where  the  heavy  penal- 
ties for  perjury,  gross  depravity,  disobedience  of  children, 
and  insubordination  towards  the  .Supreme  Judge  are  men- 
tioned. The  aim,  or  one  aim,  of  punishment  in  civil  society, 
whether  the  society  be  heathen  or  not,  is  explained  in  such 
passages  as  the  noted  one  in  Rom.,  xiii.,  4  :  "He  (the  ruler 
or  power)  is  the  minister  of  God  to  thee  for  good.  But  if 
thou  do  that  which  is  evil,  be  afraid  ;  for  he  beareth  not  the 
sword  in  vain  ;  for  he  is  a  minister  of  God,  a  revenger  to  exe- 
cute wrath  (an  e«8t«o?  or  executor  of  justice  els  opyyv  so  as  to 
express  divine  resentment)  "  upon  every  one  that  doeth  evil." 


THE   PUNITIVE   POWER   OF   THE   STATE.  339 

Plato  in   two   remarkable  passages  of  his  Laws  (jx.,  854 
D.  E.  and  862  C.)  gives  us  his  view  of  the  ends 

In  l'lato.  tt  1         •  1  • 

of  punishment.  "  He  who  is  taken  in  the  act  of 
robbing  temples,  if  he  be  a  slave  or  stranger,  shall  have  his 
evil  deed  engraven  on  his  face  and  hands,  and  shall  be  beaten 
with  as  many  stripes  as  may  seem  good  to  the  judges,  ami 
be  cast  naked  beyond  the  borders  of  the  land.  And  if  he  suf- 
fers this  punishment,  he  will  perhaps  become  better  by  chas- 
tisement ;  for  no  penalty  which  is  inflicted  according  to  law  is 
designed  for  evil,  but  generally  makes  him  who  suffers  either 
better  or  not  so  bad.  And  if  any  citizen  be  found  doing 
anything  of  this  sort, — I  mean  to  say  if  he  be  guilty  of  any  of 
the  great  and  abominable  wrongs,  either  towards  the  gods  or 
his  parents  or  the  state,  let  the  judge  deem  him  to  be  incura- 
ble, remembering  what  an  education  and  training  he  has  had 
from  youth  upward,  and  yet  has  not  abstained  from  the 
greatest  of  evils.  Death  is  to  him  the  penalty,  as  the  least 
of  evils  ;  and  others  will  be  benefited  by  his  example  if  he  be 
dishonored  or  despatched  beyond  the  borders  of  the  land." 
To  which  Plato  adds  that  he  would  not  have  children  suffer 
for  their  fathers'  crimes. 

In  the  other  passage,  he  declares  it  to  be  the  noblest  work 
of  the  law  to  make  a  man  hate  injustice,  and  love  or  not 
hate  the  nature  of  the  just.  "  But,"  he  adds,  "  if  the  legis- 
lator perceives  any  one  to  be  incurable,  for  him  he  will  make 
a  law  and  fix  a  penalty.  He  knows  quite  well  that  to  such 
men  themselves  there  is  no  profit  in  the  continuance  of  their 
lives,  and  that  they  would  do  a  double  good  to  the  rest  of 
mankind  if  they  would  take  their  departure  ;  inasmuch  as 
they  would  be  an  example  to  other  men  not  to  do  wrong  and 
would  relieve  the  city  of  bad  citizens.  In  such  cases,  and  in 
such  cases  only,  the  legislator  ought  to  inflict  death  as  a  pun- 
ishment of  offences."  With  these  the  passage  at  the  end  of 
Gorgias  (525  B.  C.)  may  be  compared.  "  It  belongs  to 
every  one  who  is  under  punishment,  when  he  is  rightfully 
punished  by  another,  either  to  become  better  and  be  prof- 
ited, or  to  serve  as  an  example,  that  others  seeing  him  suffer 


340  POLITICAL   SCIENCE. 

whatever  he  may  suffer,  may  through  fear  become  better. 
Now  there  are  those  who  receive  advantage  when  they  suffer 
penalty  at  the  hands  of  gods  or  of  men,  such  namely  as  may 
have  committed  curable  sins.  But  still  the  advantage  comes 
to  them  both  here  and  in  the  realm  of  Hades  through  pains 
and  griefs  ;  for  it  is  not  possible  to  get  rid  of  unrighteousness 
in  any  other  way.  But  such  as  have  committed  extreme  sins, 
and  on  account  of  such  unrighteousness  become  incurable, 
out  of  these  the  examples  are  taken.  And  these  themselves 
are  no  longer  benefited,  since  they  are  incurable  ;  but  others 
are  benefited,  who  see  them  on  account  of  their  sins  suffering 
through  all  time  the  greatest  and  most  painful  and  most  fear- 
ful sufferings  ;  simply  as  examples  hung  up  there  in  Hades' 
realm  in  the  prison,  as  sights  and  warnings  for  the  unrighteous 
who  may  at  any  time  go  thither."*  In  all  these  passages 
Plato  divides  wrong-doers  into  two  classes,  the  curable  and 
incurable.  The  penalty  to  the  first  class  is  corrective,  to  the 
second  it  is  for  the  benefit  of  others  as  a  motive  appealing  to 
their  apprehensions.  But  he  would  no  doubt  have  regarded 
example  as  well  as  correction  to  be  a  result  of  punishing 
curable  offenders. 

Aristotle's  works,  as  we  have  them  at  present,  contain  no 
extensive  or  consecutive  theory  of  punishment. 
At  the  end  of  the  Ethics  (Eth.  Nicom.,  x.,  9, 
§  4  et  seq.)  he  passes  from  the  educating  or  chastising  func- 
tion of  the  state  to  the  necessity  of  legislation  and  of  the 
science  of  legislation,  of  which  latter  he  promises  to  give  a 
new  foundation.  That  nothing  on  this  subject  or  on  punish- 
ment is  contained  in  the  Politics  is  due,  perhaps  to  their  in- 
complete form,  f 

Aristotle  considered  it  the  great  end  of  the  state  to  train 
up  its  citizens  into  virtue.  The  moral  virtues,  he  held,  were 
cultivated  by  pleasure  and  pain.      For  the   sake  of  pleasure 

*  Comp.  Protag.,  324  A. 

t  Comp.  Hartenstein's  Gesch.  d.  Rechts-u-Staats  philos.,  i.,  §  60. 
I  have  derived  great  aid  from  this  writer,  while  examining  all  the  pas- 
sages that  I  could  find,  bearing  on  punishment. 


THE   PUNITIVE   POWER   OF   THE   STATE.  34I 

men  do  evil,  and  to  avoid  pain  they  neglect  or  forsake  good. 
On  this  account  there  must  be  habits  formed,  such  that  pleas- 
ure shall  be  associated  with  good,  and  pain  with  evil.  Pun- 
ishments (Ko\daet<;  which  differ  from  Tifioypidc,  the  former 
being  for  the  sake  of  the  sufferer,  the  latter  for  the  sake  of 
the  doer  or  inflicter,  that  he  may  be  satisfied)  exist  for  this 
end.  "  They  are  healing  processes,  and  healing  processes 
are  wont  to  be  brought  about  by  their  contraries  "  (Eth. 
Nicom.,  ii.,  4,  p.  1104)  ;  that  is,  crimes  the  motive  of  which 
is  pleasure,  must  be  cured  by  pains.  For  passion  yields  not 
to  the  word  of  instruction  but  only  to  force  (x.,  10,  9-23,  p. 
1 179).  "The  multitude  hearkens  to  force  rather  than  to  words, 
and  to  punishment  than  to  the  morally  beautiful.  Hence 
some  believe  that  the  lawgiver  ought,  above  all,  to  prompt  and 
urge  men  into  virtue  by  reasons  drawn  from  the  morally  beau- 
tiful ;  because  those  persons  give  ear  to  such  promptings,  who 
through  their  habits  are  already  advanced  in  virtue.  On  the 
disobedient  and  the  duller  natures  the  lawgiver  must  impose 
chastisements  and  penalties,  while  he  must  drive  the  in- 
curable entirely  out  of  the  society.  For  the  good  man,  he 
who  lives  in  conformity  with  the  morally  beautiful,  will  follow 
reason  ;  but  the  bad,  who  aim,  atpleasure,  must  be  checked  by 
pain  like  a  beast  of  burden.  Therefore  they  say  that  those 
kinds  of  pains  ought  to  be  selected  for  penalties,  which  are 
the  most  complete  opposites  of  the  pleasure  desired  by  the 
transgressor  of  the  law  "   (u.  s.,  x.,  10,  p.  1180). 

Here  we  find  united,  as  in  Plato,  correction  regarded  as 
the  principal  end  of  punishment  for  the  curable,  and  banish- 
ment, for  the  sake  of  security  in  the  state,  for  the  incura- 
ble. No  one  reason  for  punishment  satisfies  even  Aristotle's 
single  theory.* 

*  For  the  need,  kinds  and  degrees  of  punishment,  comp.  Eth. 
Nicom.,  x.,  9,  §  3,  and  especially  Rhet.,  i.,  12,  8,  and  i.,  14;  and 
Polit.,  vi.,  or  vii.,  3. 


342  POLITICAL   SCIENCE. 

§  109. 
Of  Beccaria's  explanation  of  the  right  to  punish  from  the 
Modem  opinions.   social  contract,  we  have  already  spoken.      The 
Heccaria.  encj  0f  punishment  he  defines  to  be  not  torment 

nor  to  undo  a  crime,  but  simply  to  prevent  a  criminal  from 
committing  new  wrongs  against  his  fellow-citizens,  and  to  de> 
ter  others  from  doing  the  like.  Of  correction,  as  an  end,  T 
believe  he  says  nothing.  (Comp.  §  xv.,  dolcezza  delle  pene.) 
That  a  punishment  may  have  an  effect,  it  is  enough  that  the 
ill  from  the  penalty  exceed  the  good  expected  from  the  crime. 
In  this  excess  of  evil  to  be  suffered  ought  to  be  reckoned  the 
inevitableness  of  the  penalty  and  the  loss  of  the  good  procured 
by  the  offence.  More  than  this  amount  of  punishment  is 
superfluous  and  tyrannical  (ibid.).  Beccaria  has  many  hu- 
mane observations  on  criminal  law  which,  as  far  as  they  are 
true,  have  had  a  practical  influence  on  legislation.  The  laws 
alone,  he  thinks,  ought  to  decree  the  punishment  of  crimes ; 
the  police  should  have  no  arbitrary  power  in  this  respect. 
The  sovereign  ought  not  to  judge  ;  the  reason  for  which,  as 
he  gives  it,  is  that  the  sovereign,  representing  society,  charges 
a  person  with  violating  the  social  contract,  and  the  person  de- 
nies it.  Hence,  for  the  former  to  decide  would  be  the  divis- 
ion of  society  into  two  parts.  It  is  thus  necessary  that  a  third 
party,  a  judge,  have  the  case  committed  to  him  (■§*  iii.).  The 
power  of  interpreting  the  criminal  laws,  he  strangely  thinks, 
ought  to  be  in  the  hands  not  of  the  judge,  but  of  the  sover- 
eign or  depository  of  the  actual  wills  of  all  (§  iv.).  How, 
then,  if  the  interpretation  should  be  concerned  with  a  law 
against  state-offences  ?  Would  not  the  sovereign  have  more 
bias  than  any  other  person  ?  Nothing  is  more  dangerous,  he 
says,  than  that  the  spirit  of  the  law  should  be  consulted. 
The  judge's  only  business  is  to  examine  facts.  Beccaria 
would  do  away  with  arbitrary  arrests,  since  imprisonment  it- 
self is  a  penalty,  like  torture  or  the  penalty  of  death  (§§  vi., 
xii.,  xvi.).  There  should  be  a  proportion  between  crime  and 
penalty.      "  If  an  equal  penalty  is  destined   for  two   crimes 


THE   PUNITIVE   POWER   OF  THE  STATE.  343 

which  unequally  injure  society,  the  obstacle  which  men  find 
in  the  way  of  committing  the  greater  crime  will  not  be  greater, 
if  with  it  they  find  united  a  great  advantage.  Whoever, 
for  example,  perceives  that  the  same  penalty  of  death  is  es- 
tablished for  a  man  who  kills  a  pheasant,  and  for  one  who 
commits  assassination  or  forges  an  important  instrument,  will 
make  no  difference  between  these  crimes  ;  and  thus  the  moral 
sentiments  will  be  destroyed  "  (§  xxiii.).  "  The  true  meas- 
ure of  crimes  is  the  injury  done  to  society.  This  is  one  of 
those  palpable  truths  which,  though  they  need  no  quadrant 
nor  telescope  for  their  discovery  but  are  within  the  reach  of 
any  moderate  intellect,  yet,  through  a  wonderful  combination 
of  circumstances,  have  not  been  acknowledged  with  decisive 
assurance  save  by  a  few  thinkers  through  all  nations  and  ages  " 
(§  xxiv.).  "  Those  who  hold  the  intention  to  be  the  true 
measure  of  a  crime  are  in  an  error  ;  for  intentions  are  variable 
and  depend  on  changing  impressions,  and  a  code  for  each 
man  would  be  necessary.  Sometimes  men  with  the  best  in- 
tentions do  the  greatest  evil  to  society,  and  sometimes  men 
with  the  worst  intentions  will  do  the  greatest  good  "  (ibid.). 
But  if  intention  and  act  must  both  be  considered  where  a  per- 
son is  charged  with  guilt,  and  bad  intention  is  regarded  in 
law  as  intensifying  ill  desert  beyond  mere  culpa  ;  and  if,  also, 
these  are  capable  of  being  estimated  to  some  extent;  it  can- 
not be  an  injury  to  society  in  a  particular  case  that  intention 
should,  in  part,  measure  the  penalty.  After  treating  of 
special  crimes  (xxv,  and  onward)  Beccaria  asks  how  crimes  can 
be  prevented  (xli.).  His  recipes  are  such  as  these  :  to  make 
the  laws  clear  and  simple,  and  that  all  the  nation's  power  be 
condensed  in  defending  them  ;  to  see  that  the  laws  favor  in 
a  less  degree  classes  of  men  than  men  themselves,  and  that 
men  fear  the  laws  and  these  only  ;  to  unite  light  and  liberty  ; 
to  interest  those  who  execute  the  laws  in  keeping  them  ;  to 
recompense  virtue  as  well  as  to  punish  crime;  to  make  educa- 
tion perfect.  On  the  point  of  offering  rewards  for  virtue,  all 
law  until  now,  as  he  observes,  holds  entire  silence.  But  why 
should  not  such  rewards   multiply  virtuous  actions,  just  as. 


344  POLITICAL   SCIENCE. 

scientific  premiums  stimulate  discoverers  of  useful  truth  ?  The 
coin  of  honor  is  always  inexhaustible  in  the  hands  of  the  wise 
distributor.  To  this  it  may  be  answered  that  certain  kinds 
of  noble  actions,  such  as  to  risk  one's  life  in  order  to  save 
others,  may  well  be  rewarded ;  but  that  virtue  in  the  wide 
sense  of  the  term,  admits  of  no  human  measurement,  and  is 
purer  without  than  with  human  recompenses.  In  §  xlii.  Bec- 
caria  sums  up  all  in  this  axiom  :  in  order  that  any  penalty  be 
no  violent  act  of  one  or  of  many  against  a  private  citizen,  it 
ought  to  be  essentially  public,  prompt,  necessary,  the  least 
possible  in  the  given  circumstances,  proportionate  to  the 
crimes  pronounced  by  the  laws. 

Although  Beccaria's  short  work  is  full  of  humanity  and 
enlightenment,  we  cannot  help  seeing  a  certain  flatness  and 
want  of  depth  in  itT  with  which  his  explanation  of  the  state's 
right  to  punish,  and  his  exclusive  reference  to  the  public 
good,  without  appealing  to  the  moral  sentiment,  accord. 

§  HO. 
In  his  treatise  de  jure  belli  et  pacis,  Grotius  devotes  a  long 
chapter  to  the  subject  of  punishment  (ii.,  20). 
He  defines  penalty  as  "the  evil  of  suffering 
which  is  inflicted  on  account  of  the  evil  of  doing  "  (§  i.,  1). 
Is  punishment  ever  right  is  a  question  to  be  settled  by  natu- 
ral feeling  :  "  among  those  things  which  nature  herself  dic- 
tates as  being  permissible  and  not  unjust,  is  this, — that  he 
who  has  done  evil  must  suffer  evil."  As  to  the  amount  of 
penalty  he  thinks  that  the  first  thing  to  be  looked  at  is  equal- 
ity between  the  fault  and  the  recompense  (§  2,  1).  It  is  not 
justilia  assiguatrix  but  expletrix,  that  is,  not  that  justice 
which  assigns  to  us  according  to  our  claims,  but  commutatory 
justice,  which  is  exercised  in  penalties  ;  yet  it  is  commutatory 
in  this  sense,  that  he  who  transgresses  by  a  kind  of  contract 
obligates  himself  of  his  own  will  to  suffer  (§  2,  3).  He  denies 
the  absolute  necessity  of  punishment  "  for  men  are  of  the  same 
blood,  and  ought  not  to  hurt  one  another  unless  for  the  sake 
of  obtaining  some  good  "  (§§  4,   5).     The  etid  or  motive  of 


THE   PUNITIVE   TOWER    OF   THE   STATE.  345 

punishment  can  lie  in  the  utility  of  the  wrong-doer,  or  of  him 
who  lias  been  injured,  or  of  persons  in  general.  No  one  of 
these  three  reasons  ought  to  be  looked  at  by  itself.  "  All  of 
them  ought  to  be  wanting  in  order  that  punishment  may  not 
have  place  (^13,  1).  The  question  what  actions  are  punish- 
able he  decides  by  saying  that  all  vicious  acts  ought  not  to  be 
so  treated.  Thus  internal  acts  ought  not  to  be  punished  by 
men,  although  they  may  be  made  use  of  in  estimating  the 
quality  of  such  as  are  external  (§  18).  So  acts  unavoidable 
for  human  nature  (§19),  such  as  neither  directly  nor  indirectly 
respect  human  society  or  any  other  individual,  ingratitude 
also,  ought  not  to  be  visited  with  penalty.  But  Grotius 
would  have  those  who  deny  the  existence  or  the  providence 
of  God,  subject  to  penalty  ;  and  as  to  extending  the  catalogue 
of  crimes  against  religion  farther  he  is  somewhat  in  doubt 
(§<§  45-47).  Pardons  he  defends  against  those  who  deny  that 
law  can  be  relaxed  in  no  case  whatever.  Pardon  is  a  suspen- 
sion of  the  law  in  a  particular  case  :  such  suspension  can  be 
permitted,  if  it  be  allowed  to  abrogate  the  law  altogether 
(§  24>  3)-  The  causes  of  remitting  the  penalty  are  the  in- 
trinsic and  the  extrinsic  one  ;  the  former  finds  place  when 
the  punishment  is  severe  compared  with  the  fact ;  the  latter, 
when  some  merit  or  other  thing  commends  the  criminal  to 
mercy  and  when  there  is  great  hope  of  him  for  the  future. 
When  offences  are  committed  through  ignorance,  there  is 
especial  reason  for  release  from  penalty.  Grotius  thinks  that 
even  the  injured  person  may  punish  for  the  wrong  committed 
against  himself  (§  8,  2)  ;  and  were  there  no  courts,  the  people 
might  do  this  for  their  own  protection  (§  8,  5).  But  because 
we  are  misled  by  self-love,  courts  are  constituted,  to  whom 
was  given  the  sole  power  of  avenging  the  injured.  And 
moreover,  "  since  the  proof  of  the  fact  requires  great  care, 
and  the  estimate  of  the  amount  of  penalty  great  wisdom  and 
equity,  those  have  been  chosen  for  this  purpose  who  Avere 
judged  wisest  and  best  "  (§  9,  4). 

Grotius,  on  the  whole,  shows  great  good  sense  and  modera- 
tion in  discussing   the   subject    of  state   penalties.      He  then 


346  POLITICAL   SCIENCE. 

goes  on  to  discuss  the  subject  of  religious  wars,  and  in  an- 
other chapter  the  punishment  of  accessories  and  persons  in 
some  way  connected  with  the  principal  offender.* 

In  the  modern  systems  of  jural  and  ethical  philosophy,  the 
meaning  of  punishment  has  been  extensively 
discussed.  Kant,  in  his  Rechtslehre  (Werke,  v. 
127,  ed.  Leipz. ,  1838),  gives  his  theory  as  follows:  "The 
bare  idea  of  a  state  constitution  among  men  carries  with  it 
the  conception  of  penal  justice,  as  belonging  to  the  province 
of  the  supreme  power.  The  only  question  is  whether  the 
kinds  of  penalties  are  a  matter  of  indifference  to  the  lawgiver, 
if  only  they  conduce  to  the  removal  of  crime,  considered  as 
impairing  the  security  furnished  by  the  state  to  the  individual 
in  possessing  that  which  is  his  own  ;  or  whether  also  regard 
must  be  had  to  humanity  in  the  person  of  the  wrong-doer, 
i.e.,  to  the  [human]  species,  and  that  simply  for  jural  reasons. 
For  I  consider  the  jus  talionis — as  far  as  the  form  is  con- 
cerned— to  be  after  all  the  only  a  priori  determinative  idea, 
as  a  principle  of  penal  justice;  and  do  not  regard  it  as  derived 
from  the  experience  of  the  means  most  effectual  for  that  end. 
But  how,  one  may  ask,  does  the  case  stand  in  regard  to 
crimes  that  admit  of  no  retaliation  ;  where  retaliation  is  either 
in  itself  impossible,  or  in  order  to  be  carried  out  would  re- 
quire the  commission  even  of  a  punishable  crime  against 
humanity  in  general,  as  rape,  buggery,  or  sodomy,  etc."  In 
another  place  (p.  166,  onw.)  he  treats  more  fully  of  the  kinds 
and  degrees  of  crimes.  He  is  decidedly  in  favor  of  the 
death-penalty  (p.  168).  "  If  a  man  has  committed  a  murder 
he  must  die.  There  is  no  substitute  for  this  that  is  able  to 
satisfy  justice.  There  is  no  likeness  in  kind  between  a  life 
ever  so  miserable  and  death  ;  and  thus  no  equality  between 
the  transgression  and  the  recompense,  save  through  a  death 
inflicted  in  the  course  of  justice,  and  yet  unaccompanied  by 
any  such  cruelty  or  outrage  as  could  render  human  nature  in 
the  person  of  the  sufferer  an  object  of  horror."     The  cases 

*  Comp.  for   this    summary  of  the   opinions    of  Grotius    Harten- 
stein's  Abhandlungen,    pp.  195-206. 


THE    PUNITIVE    POWER   OF   THE   STATE.  347 

of  wilful  murder,  infanticide,  and  death  in  a  duel  he  finds 
perplexing.  In  speaking  of  the  second,  he  makes  the  strange 
remark  that  the  illegitimate  child  came  into  the  world  against 
the  law  ;  it  is  outside  of  the  protection  of  the  law  ;  it  has,  like 
prohibited  goods,  been  smuggled  in  ;  so  that  the  state  may- 
ignore  its  existence,  and  consequently  its  being  put  out  of  ex- 
istence. But  if  a  smuggler  brought  a  child  from  a  hostile 
state  into  the  country  and  murdered  him,  would  it  be  a  palli- 
ation that  it  was  born  outside  of  the  state's  protection  ? 
Hegel's  explanation  of  punishment  seems  to    start    from 

looking  on  a  wrong  as  a  negation  (a  Jiichtigkeit). 

The  force  used  in  a  wrong  is  abolished  by  a 
counter-force,  i.  e..,  by  a  superior  power  of  the  state.  Pun- 
ishment is  a  "  zweiter  Zwang,  der  ein  aufheben  eines  ersten 
Zwang  ist."  (Philos.  des  Rechts,  §  93.)  How  crimes  are  to 
be  punished  "  thought "  cannot  determine,  he  says,  but 
positive  determinations  [t.  e. ,  of  experience]  are  necessary  for 
this  end.  With  the  advance  of  cultivation,  milder  views  of 
crime  have  come  in,  and  now  punishments  have  lost  much 
of  their  ancient  severity. 

§  in. 
Herbart  and  his  school  derive  the  right  of  punishment  from 
Herbart  and  Har-   the  idea  of  requital  (vergeltung),   and  Harten- 
stein,   one  of  them,  has  well  expounded    their 
view    (Grundbegriffe    d.    eth.   Wiss.,   260-274).*     Good  and 
evil  actions  demand  retribution  or  requital,  not  on  the  prin- 
ciple of  talio  but  on  a  scale   determined  by  the  amount  of 
wrong  done,  according  to  the  law  of  equity  (billigkeit)  or  fit- 
ness.    The  kind  of  punishment  is   dictated  by  the  social  and 
political  ends  to  be  subserved,  and  by  the  law  of  benevolence. 
Intentional  wrong  deeds,   which  are  also  violations  of  jural 
order,  are  objects  of  punishment.     The  state  utters  its  threat  - 
enings  against  such  deeds  in  the  form  of  criminal  law,  and  the 

*  Comp.  also  a  brief  statement  of  it  by  Prof.  Geyer,  of  Innsbruck, 
in  v.  Holzendorf  s  Encycl.  d.  Rechtwissensch.,  i.,  499  et  seq.,  in  his 
chapter  on  Strafrecht. 


348  TOLITICAL  SCIENCE. 

threats  have  the  effect  of  deterring  ;  but  if  to  deter  by  fear 
(abschreckung)  were  the  sole  aim  of  punishment,  it  might 
happen  that  slight  offences  into  which  men  were  easily  led  by 
temptations,  would  need  to  be  punished  more  heavily  than 
great  crimes,  and  that  the  punishment  might  exceed  the 
measure  of  the  crime.  "  The  conception  of  a  moral  order  in 
the  world,  in  which  the  ancient  conception  of  a  Nemesis  is 
ennobled  into  the  conception  of  a  holy  and  righteous  rewarder, 
is  not  based  on  jural  conceptions  but  immediately  on  the  idea 
of  equity  (billigkeit)  ;  and  no  man  waits  for  a  law  to  be  en- 
acted in  order  to  find  intentional  badness  to  be  worthy  of 
punishment"  (p.  260).  "That  the  evil-doer  deserves  pun- 
ishment simply  because  and  in  the  measure  that  he  has 
transgressed  is  an  ancient  thought,  which  gives  its  testimony 
for  the  peculiar  import  of  the  idea  of  requital  ;  and  Hegel 
remarks  with  reason  '  that  the  general  feeling  of  nations  and 
individuals  on  the  commission  of  crime  is  and  has  been  that 
it  deserves  punishment,  and  that  the  transgressor  ought  to 
receive  as  he  has  done'  "  (p.  266).  It  may  be  thought  that 
to  requite  evil  deeds  for  the  sake  of  requiting  them  is  some- 
thing like  malevolence.  That  this  may  happen  is  admitted  ; 
and  in  order  to  prevent  it,  blood-revenge  with  other  kinds 
of  personal  or  family  vengeance  are  done  away  with,  as  far  as 
possible,  by  the  laws  of  civilized  society.  But  there  is  no 
necessary  connection  between  penalty  and  vengeance ;  and 
general  laws,  courts  above  the  influence  of  private  motives  or 
personal  feelings,  are  intended  to  prevent  the  sense  of  injury 
from  running  over  into  wrath  and  malice  (pp.  269-270). 

If  this  be  so,  there  is  no  real  contradiction  between  the  ab- 
solute theories,  viz.,  that  penalty  is  an  end  in  itself,  and  the 
relative  theory,  viz.:  that  it  is  for  the  purpose  of  preventing, 
deterring,  correcting,  etc.  "  Admit  that  requital  on  its  own 
account  is  a  moral  task  incumbent  on  a  community:  this  does 
not  shut  out  the  possibility  of  keeping  before  the  eye  other 
ends,  among  which  the  protection  of  justice  will  always  con- 
tinue to  be  the  most  important  "  (p.  271). 

This  view  approaches  near  to  that  which  we  have  been  led 


THE   PUNITIVE   POWER   OF   THE   STATE.  349 

to  adopt,  namely,  that  we  must  assume  the  wrong  and  desert 
of  punishment  of  certain  actions  in  order  to  have  any  punish- 
ment at  all.  Herbart's  and  Ilartenstein's  notion  of  requital, 
however,  like  the  talio  theory,  labors  under  the  great  difficulty 
caused  by  the  limitation  of  human  intelligence  and  the  danger 
of  partial  feelings.  Laws  defining  and  punishing  crime  must 
be  general.  But  the  differences  of  absolute  blame-worthiness 
and  desert  of  suffering  are  infinite.  How  can  evil,  inflicted 
on  a  wrong-doer  by  the  state,  be  a  fair  requital,  if  a  group  of 
actions,  identically  the  same,  can  in  degree  of  criminality  be 
as  far  removed  from  another  as  possible.  We  punish  certain 
wrong  actions  because  they  are  wrong,  yet  are  unable  to  tell 
the  degrees  of  wrong  ;  and,  if  it  were  not  a  case  of  life  and 
death  for  society  that  the  state  should  have  such  a  particle  of 
divine  justice  put  into  its  earthen  vessels,  we  should  not  pun- 
ish actions  any  more  than  thoughts  or  unexecuted  intentions. 
The  best  thing  for  the  state  in  these  circumstances  seems  to 
be  to  fix  the  penalty  within  a  fair  estimate  of  the  ill-desert  of 
a  given  transgression,  and  to  put  the  discretion  of  lowering 
it  in  special  cases  in  the  hands  of  judges. 

Stahl  closes  his  "  Philosophic  des  Rechts  "  with  a  chapter 
on  the   administration   of  criminal  law,    which 

Stahl.  . 

contains  much  that  is  excellent.  I  can  only  give 
his  explanation  of  the  meaning  of  punishment  (§  140).  "  As 
the  moral  kingdom  of  the  state  in  general  is  only  an  external 
one,  so  also  is  its  punitive  justice.  Its  order  and  dominion 
is  injured  only  by  outward  act — by  crime;  and  is,  therefore, 
restored  only  by  outward  penalty  inflicted  outwardly  on  the 
body.  But  this  outward  punitive  justice  can  in  its  nature  be 
no  other  than  all  punitive  justice  in  general  ;  it  must  rest  on 
the  same  idea  of  righteousness  with  the  [divine]  idea  of  right- 
eousness, although  having  another  application.  It  is  the  res- 
toration of  the  kingdom,  that  is  of  the  glory  (herrlichkeit)  or 
majesty  of  the  state  by  the  destruction  or  the  suffering  of  him 
who  revolts  against  it.  By  transgression  the  doer  of  the  deed 
makes  himself  a  lord  over  the  state  and  its  order,  he  builds 
up  another  kingdom  of  his  own  within  him  ;  for  this  reason 


350  POLITICAL   SCIENCE. 

the  higher  might  of  the  state  must  manifest  itself  in  his  case, 
as  well  to  the  outward  world,  as  to  the  consciousness  both  of 
human  society  and  of  the  transgressor  ;  it  must  crush  him,  or 
otherwise  make  him  feel  its  weight,  must  prevail  over  his  will 
by  depriving  him  of  that  which  he  by  his  power  of  will  wills  : 
satisfaction  of  desire — ,  and  by  inflicting  upon  him  what  he 
does  not  will  :  pain,  limitation — in  order  that  its  sway,  and 
none  else,  may  subsist  : — this  is  punishment.  It  is  not  the  law 
of  the  state  that  must  be  maintained  or  restored  by  punish- 
ment— this  would  be  impossible,  its  violation  is  irrevocable — 
but  its  majesty.  Righteousness,  according  to  its  conception, 
does  not  demand  that  no  violation  of  law  shall  take  place,  it 
demands  only  that  no  will  contrary  to  law  shall  keep  its  ground, 
and  get  the  victory  in  spite  of  higher  order."  "  But  how  can  a 
restoration  of  violated  order  consist  in  inflicting  evil  on  the  vio- 
lator ?  for  such  undoubtedly  is  punishment.  By  the  coming 
of  a  second  evil  into  the  world  the  contradiction  contained  in 
the  first  is  not  done  away.  But  righteousness,  in  the  objec- 
tive sense,  does  not  consist  in  the  fact  that  no  evil  comes  into 
the  world,  but  in  this — that  the  majesty  of  the  moral  power 
(of  law  and  of  the  magistrate  as  inseparably  united  with  law) 
is  upheld  inviolably  in  the  moral  kingdom."  He  goes  on  to 
say  that  every  action  has  a  lordship  in  it;  and  if  a  man  acts 
against  the  law,  he  sets  up  a  lordship,or  assumes  a  sway,which 
is  opposed  to  moral  power.  What  now  righteousness  de- 
mands is,  not  that  the  action  shall  be  undone,  but  that  the 
majesty  or  superiority  to  the  law  of  moral  order  shall  be  an- 
nihilated. This  is  done  by  turning  the  offender  into  some- 
thing lorded  over  and  passive,  which,  instead  of  acting,  is  sub- 
ject to  the  action  of  the  law  and  its  ministers,  to  suffering, 
to  pain,  or  death. 

This  explanation  of  Stahl's  reminds  us  of  theological  ex- 
planations of  punishment  in  the  kingdom  of  God,  as  being 
vindications  of  the  honor  of  the  righteous  law.  But  one  may 
ask  why  this  necessity  ?  Is  not  righteousness  just  as  pure 
and  glorious  in  itself,  when  an  unrighteous  act  attempts  to 
oppose  moral  order,  as  if  no  world  of  transgressors  were  in 


THE    PUNITIVE    POWER    OF   THE   STATE.  35 1 

arms  against  it?  The  necessity  of  punishment,  then,  must 
exist  for  the  subjects  of  law,  it  must  be  relative  to  their  wants, 
must  have  in  view  their  moral  training,  must  confirm  them  in 
obedience.  Stahl  then  does  not  avoid  falling  down  into  the 
relative  theory. 

Richard  Rothe  (Christ.  Ethik,  iii.,  pp.  874-900,  §§  1,153- 
1 , 1 56),  looking  at  the  state  as  built  on  the  moral 

is..  K.otne.  w 

idea,  holds  that  "  the  state  not  only  may  but 
must  punish  if  it  do  not  prove  false  to  its  holiness  and  its 
exalted  calling  ;  and  thus  in  punishment  it  reveals  most  clearly 
its  moral  majesty.  And  as  a  Christian  state,  it  is  most  indu- 
bitably obliged  to  punish  ;  for  on  the  basis  of  the  complete 
settlement  of  the  conflict  between  the  interests  of  holiness 
and  those  of  grace,  which  is  effected  by  Christ's  redemption, 
love  can  no  longer  hold  back  the  arm  of  punitive  righteous- 
ness, but  must  expressly  move  it  to  action  in  the  interest  of 
love  itself"  (876-877).  The  idea  of  requital  (vcrgcltung) 
must  be  the  principle  of  punitive  justice  in  the  state,  and 
"  punishment  can  be  used  as  a  means  for  no  purpose,  beauti- 
ful as  its  name  may  sound,  alien  from  the  conception  of  an 
efficient  reaction  against  evil,as  attacking  eternal  moral  order  " 
(877).  "  It  must  be  strict  requital  ;  that  is,  the  infliction  of  a 
mass  of  evil  on  the  sinner,  corresponding  with  the  mass  of 
his  sin  "  (880).  To  measure  this  proportion  two  processes 
can  be  used,  that  of  injury  and  danger  to  the  community, 
and  that  of  the  sinfulness.  "The  object  to  be  kept  in  view 
on  the  part  of  the  state  is  to  requite  a  definite  measure  of 
moral  badness  in  a  wrong  deed  by  an  accurately  correspond- 
ing measure  of  evil.  Thus  its  principle  of  government  is  the 
jus  talionis,  which  is  the  only  really  objective,  not  arbitrarily 
conventional,  principle  of  punishment."  And  yet  this  prin- 
ciple must  not  be  applied  in  its  abstract  external  form,  in 
which  certainly  it  is  a  barbarous  principle  of  justice.  There 
must  be  an  equality  between  crime  and  punishment  in  the 
sense  of  the  "  moral  value  of  the  evil  deed  on  its  outward 
objective  side  as  measured  by  the  evil  suffered  ;  and,  again, 
what  is  more   important,  as  measured  by  the  criminality  of 


352  POLITICAL   SCIENCE. 

the  person  doing  it.  As  with  the  progress  of  moral  culture 
the  jus  talionls  is  becoming  better  and  better  understood,  the 
judgments  concerning  crime  and  the  penalties  for  it  are  be- 
coming milder  "  (882).  These  principles  of  our  author,  if 
acted  upon  in  criminal  law,  would  require  discernment  like 
that  of  God,  and  a  diversity  of  punishment  such  as  no  crimi- 
nal law  could  express  ;  or,  in  other  words,  an  arbitrary  power 
on  the  part  of  the  judge  rendering  all  specifications  of  pun- 
ishment in  the  land  useless.  If  all  judges  were  as  estimable 
and  noble  in  character  as  Richard  Rothe  was,  perhaps  that 
would  do  less  harm  than  it  would  now. 

§  112. 
We  close  our  sketch  with  a  reference  to  Jeremy  Bentham's 
"  Rationale  of  Punishment  ",  which  appeared  in 

Bentham.  . 

an  English  dress  in  1830,  after  Dumont  s 
"Theorie  des  peines  et  des  recompenses,"  published  at 
Paris  in  181 1,  and  with  consultation  of  the  author's  MS£. 
At  an  earlier  date  Dumont  had  published  at  Paris  a  work  by 
Bentham  embracing  criminal  law,  "  les  traites  de  legislation 
civile  et  penale  "  in  1802. 

Bentham's  view  of  the  ends  of  punishment  is  what  might 
be  expected  from  his  philosophical  starting  point.  Two 
points,  he  says,  will  be  looked  at  by  a  wise  legislator,  when 
an  act  attended,  or  likely  to  be  attended  with  undesirable 
consequence  is  committed  ;  he  will  desire  to  obviate  the  dan- 
ger of  like  mischief  in  the  future  and  to  compensate  for  the 
mischief  already  done  The  mischief  likely  to  arise  from 
similar  acts  may  proceed  from  the  person  who  has  already 
been  the  author  of  the  mischief,  or  from  others  with  motives 
and  opportunities  to  do  the  like.  Prevention  thus  divides 
itself  into  particular  prevention  which  has  respect  to  the 
cause  of  the  mischief,  and  general  prevention  which  has 
respect  to  the  whole  community.  Pleasure  and  pain  are  the 
means  of  prevention.  If  the  value,  i.  e.,  the  proximity,  cer- 
tain intensity  and  duration  of  the  pain,  is  greater  than  the 
apparent  value  of  the  pleasure  or  good  expected  from   the 


THE   PUNITIVE   POWER   OF   THE   STATE.  353 

act,  he  will  be  prevented  from  performing  it.  Thus  also  the 
mischief  consequent  on  the  act  will  be  prevented.  As  far  as 
the  offender  is  concerned,  the  recurrence  of  his  offence  may  be 
prevented  by  depriving  him  of  his  physical  power  of  offend- 
ing, by  taking  away  the  desire,  and  by  making  him  afraid. 
Thus  punishment  has  three  objects  with  regard  to  a  particular 
offender,  incapacitation,  reformation,  intimidation.  General 
prevention  is  effected  by  threatening  and  inflicting  punish- 
ment, which  thus  serves  for  an  example.  General  prevention 
ought  to  be  the  chief  end  of  punishment,  as  it  is  its  real  jus- 
tification. If  an  offence  were  an  isolated  act,  the  like  of 
which  would  never  occur,  punishment  would  be  useless. 
But  as  an  unpunished  crime  leaves  the  path  of  crime  open, 
not  only  to  the  same  delinquent  but  also  to  all  those  who 
may  have  the  same  motives  and  opportunities,  punishment 
inflicted  on  the  individual  becomes  a  source  of  security  to 
all.  "  Thus  it  is  elevated  to  the  first  rank  of  benefits,  when 
it  is  regarded,  not  as  an  act  of  wrath  or  of  vengeance  against 
a  guilty  or  unfortunate  individual  who  has  given  way  to  mis- 
chievous inclinations,  but  as  an  indispensable  sacrifice  to  the 
common  safety"  (Book  L,  chap.    3). 

Bentham's  great  division  of  punishments  is  into  corporal 
and  privative  ;  the  former  including  such  as  give  bodily  pain, 
such  as  confine  or  banish,  and  death  ;  the  latter  including  for- 
feitures, from  simple  fines  upward  to  forfeiture  of  reputation, 
of  condition  and  of  protection  from  the  law.  He  does  not 
condemn  absolutely  the  death-penalty,  although  he  gives 
strong  reasons  against  it.  As  it  respects  pecuniary  forfeitures, 
he  seems  to  have  no  objection  to  fines  for  a  given  offence  pro- 
portioned to  the  property  of  the  offender  (p    354). 

Bentham's  treatise  abounds  in  well-considered  and  enlight- 
ened remarks  on  various  aspects  of  punishment,  and  there 
were  probably  few  discussions  of  this  subject,  before  his,  of 
equal  importance.*  But  the  cardinal  doctrine, — that  the ;«0- 
tives  to  be  set  before  the  criminal  are  simple  pleasure  and 

*  Other  jurists,  as  Feuerbach,  in  his  treatise  on  penal  law,  take 
the  same  ground  with  Bentham. 
23 


354  POLITICAL   SCIENCE. 

pain,  and  the  end,  prevention, — by  overlooking  the  ill-desert 
of  wrong-doing,  makes  it  and  all  similar  systems  immoral,  and 
furnishes  no  measure  of  the  amount  of  punishment,  except 
the  law-giver's  subjective  opinion  in  regard  to  the  sufficiency 
of  the  amount  of  preventive  suffering. 

This,  also,  I  suspect,  has  not  been  sufficiently  taken  into  ac- 
count,— that  the  criminal's  mind  having  been  acted  upon  by  his 
course  of  life,  he  becomes  in  many  instances  more  confident 
of  impunity  than  probabilities  will  warrant,  and  more  chained 
to  his  crimes  and  less  able  to  rise,  owing  to  his  increasing 
separation  from  the  better  part  of  society.  Thus  preventive 
fear  is  in  part  taken  away,  and  reform  is  beyond  his  strength. 
The  threats  of  the  criminal  law  do  not  deter  the  degraded  or 
hardened  criminal  from  evil.  In  this  way  the  corrective  power 
of  punishment  is  lost,  and  the  threats  of  law  only  make  him 
worse.  This  being  true  of  the  greater  part  of  criminals,  while 
the  great  end  of  society  in  penal  law  is  to  protect  itself,  it  has 
another  great  object  before  it,  for  its  own  sake  and  for  that  of 
humanity,  in  the  reformation  of  the  criminal  through  a  wise 
and  kind  process  of  punishment. 

On  the  whole,  since  the  state  must  deal  with  crime  as  the 
upholder  of  moral  order,  and  as  recognizing  the  culpability  as 
well  as  the  harm  of  wrong  actions  opposed  to  moral  order,  it 
is  obliged,  for  that  reason  as  well  as  for  others,  to  inflict  pun- 
ishment. But  it  is  bound  also,  in  its  method  and  kinds  of 
punishment,  to  choose  such  a  system  as  will  tend  to  repress 
crime,  to  strike  fear  into  those  who  are  tempted  to  it,  to  cor- 
rect those  who  have  committed  it. 

Crime  and  the  penalty  paid  for  it  ought  to  be  in  some 
Relative  greatness  measure  correspondent.  There  is  a  reality  in 
the  use  of  the  word  satisfaction,  which  denotes 
the  doing  of  not  less  nor  more  than  enough  to  meet  the  de- 
sires or  expectations  of  another,  both  when  it  is  applied  to 
the  payment  of  a  debt  or  the  reparation  of  an  injury,  and  also 
when  it  is  spoken  of  as  a  penalty  which  meets  the  demands 


THE   PUNITIVE   POWER   OF   THE   STATE.  355 

of  justice.  In  the  Catholic  notion  of  satisfaction,  justice  hav- 
ing been  satisfied  by  Christ's  death  as  far  as  future  penalty 
and  as  far  as  the  guilt  of  sins  committed  before  baptism  are 
concerned,  the  temporal  punishment  of  subsequent  sins  is 
removed  by  confessio  oris  and  satisf actio  opcris.  This  satis- 
faction was  probably  only  an  expression  of  repentance  at  first, 
and  implied  no  necessary  equivalence  of  the  wrong  and  the 
penance  ;  nor  could  it  do  this,  because  forgiveness  was  at 
work  with  the  penance.  But  in  this  case,  as  well  as  in  pay- 
ment of  debt  and  in  suffering  for  wrong  done  to  the  commu- 
nity, offences  of  different  grades  were  measured  rudely  by 
their  magnitudes.  There  is  no  possibility  of  an  exact  meas- 
ure, because  the  subjective  state  of  criminals  committing  the 
same  deed  varies  endlessly,  because  the  relative  magnitude 
of  crimes  can  be  reduced  to  no  exact  scale,  and  because  the 
crime  and  the  punishment  are  unlike  quantities.  What,  then, 
is  meant  by  the  words  that  a  great  crime  deserves  a  great 
punishment,  and  that  wrong  and  pain  must  be  proportionate. 
The  meaning,  as  far  as  I  can  see,  is  this  :  that  the  impression 
produced  by  the  punishment  ought  to  be  equal  in  some  sense 
to  the  crime — that  is,  the  impression  made  on  the  community. 
This  is  required  both  to  satisfy  the  sense  of  justice,  and  to 
teach  the  unthinking  the  demerit  of  the  crime.  If  a  cold- 
blooded murder  were  punished  with  imprisonment  for  three 
months,  and  the  stealing  of  a  chicken  with  cutting  the  thief's 
ears  off,  in  both  cases  the  moral  sense  of  the  community  (as  I 
must  call  it,  for  I  cannot  ascribe  it  to  the  demand  for  secu- 
rity alone,)  would  be  shocked,  and  punishment  would  have 
no  such  effect  as  it  ought  to  have.  Again,  suppose  so  great 
a  crime  to  be  committed  as  the  murder  of  a  husband  by  a 
wife,  with  no  provocation,  and  with  the  motive  of  concealing 
an  adulterous  intercourse  ;  there  might  be  very  little  fear  of 
the  recurrence  of  such  an  atrocious  deed,  but  the  highest  pen- 
alty of  the  law  would  be  demanded  by  the  moral  feelings  of 
mankind. 

It  is  easier  to  make  a  gradation  in  crimes  than  to  produce 
an  equipoise  between   them  and  punishment.      And  yet,    in 


356  POLITICAL   SCIENCE. 

measuring  crime  apart  from  the  subjective  state  of  the 
criminal  himself,  public  opinion  is  changing  and  fluctuating 
under  various  influences.  In  a  mercantile  country,  frauds, 
in  an  agricultural,  horse-stealing — in  all  countries,  the  fre- 
quency of  crimes  of  one  or  several  sorts  will  demand  a  pun- 
ishment disproportionate  to  the  apparent  bad  disposition  of 
the  criminal,  or  the  actual  injury,  on  the  whole,  to  society. 
Hence,,  there  will  be  several  standards  in  the  same  country ; 
and  in  different  countries,  crimes,  from  national  temperament 
or  the  constitution  of  society,  will  seem  more  or  less  heinous, 
more  or  less  deserving  of  punishment.  Aristotle  in  his  rhet- 
oric (i.,  14)  gives  us  several  criterions,  but  expresses  no 
opinion  of  his  own,  since  his  object  is  to  treat  of  forensic 
arguments.  One  is  that  "  greater  crimes  proceed  from  a 
greater  spirit  of  wrong-doing,  as  when  an  Athenian  was  ac- 
cused of  cheating  the  builders  of  a  temple  out  of  an  obol 
and  a  half,  and  it  was  urged  that  one  who  stole  so  petty  an 
amount  of  sacred  money  would  do  any  wrong.  But,  meas- 
ured by  justice,  Aristotle  says,  this  would  not  hold  good. 
Sometimes  again,  he  continues,  "  a  great  wrong  is  measured 
by  its  amount  of  harm,  or  by  its  being  greater  than  any 
penalty  can  reach,  or  by  its  being  irreparable  or  by  the  in- 
ability of  the  sufferer  to  obtain  satisfaction.  Sometimes  a 
wrong  inflicts  a  disgrace,  on  account  of  which  the  injured 
person  inflicts  evil  on  himself  (such  as  suicide).  Sometimes 
the  greatness  of  a  wrong  depends  on  whether  one  did  it  alone, 
or  for  the  first  time,  or  with  a  few  others  ;  and  sometimes 
on  his  repeating  it.  Again,  a  savage  wrong  is  greater  than 
another,  or  a  more  premeditated  than  a  less  premeditated  ; 
or  one  exciting  terror  when  it  is  heard  of,  or  an  accumulation 
of  crimes,  or  a  crime  like  false  witness  in  a  place  where 
wrong-doers  are  punished  \i.  e.,  before  a  court],  or  a  shame 
ful  crime,  or  one  against  a  benefactor,  more  than  others  with- 
out these  discriminating  characteristics." 


THE   PUNITIVE   POWER   OF   THE   STATE.  357 

$    II4- 
Some  of  the  considerations  affecting  the  estimate  of  the 
Causes  enhancing  magnitude  of  the  crimes  are  the  following  : 

or  diminishing  crime.  j       guch    as    &re    tQ     be     found     Jn     ffo    sfate    or 

nature  of  the  person  himself.  Thus,  weakness  of  intellect  miti- 
gates criminality,  if  it  do  not  altogether  destroy  responsibil- 
ity. The  same  is  true  of  disordered  reason.  Insanity  exempts 
from  punishment  entirely.  Mental  irregularities,  like  ab- 
normal fear,  jealousy,  fanaticism,  or  bodily  causes  acting  on 
the  intellect,  may  lessen  it.  Condition  in  life.  A  man  of 
high  condition  has  far  stronger  motives  acting  on  him  for 
doing  well  than  one  born  and  moving  in  the  lowest  ranks  of 
life.  Dr.  Dodd's  forgery,  and  Prof.  Webster's  murder,  other 
things  being  equal,  were  higher  crimes  than  others  called  by 
the  same  name.  Provocation.  Wrongs  dictated  by  reasonable 
anger  or  unprovoked  insult,  are  naturally  put  lower  on  the 
scale  of  criminality  than  like  wrongs  committed  in  cooler 
moments.  So  premeditation  heightens  guilt.  Imposture  and 
false  pretences  are  more  odious  and  ill-deserving  than  a  single 
theft,  partly  because  they  imply  a  series  of  knaveries  and 
partly  because  they  proceed  from  cool  purpose. 

2.  The  injury  done  or  meditated  furnishes  an  estimate. 
Thus,  at  the  head  of  the  list  of  crimes  stand  treason  and 
murder,  the  highest  wrongs  against  the  state  and  the  indi- 
vidual. Then  follow  inferior  wrongs  against  the  state,  or 
against  the  community  and  the  individual  in  one  and  the 
same  act. 

Some  of  the  wrongs,  however,  which  are  inflicted  on  indi- 
viduals and  clearly  deserve  the  name  of  crimes,  are  not  al- 
ways so  regarded.  Such  is  adultery,  which  by  Hebrew  law 
(in  the  sense  of  criminal  intercourse  with  a  married  woman) 
was  punished  with  death.  By  the  law  of  Athens  and  of  other 
states,  an  adulterous  pair  might  be  killed  if  caught  in  the  act, 
which,  however,  is  not  so  much  a  measure  of  the  crime  as  an 
indulgence  of  the  husband's  vengeance.  What  the  penalty 
was  on  trial  for  fMoi^eia  at  Athens,   does  not  appear.      There 


358  POLITICAL   SCIENCE. 

were,  however,  various  penalties  for  this  offence,  some  dis- 
graceful, others  painful,  in  various  parts  of  Greece  (Meier  u. 
Schom.  Att.  proc,  p.  331).  By  early  Roman  usage,  a  wife 
committing  this  crime  could  be  tried  before  a  family  court 
and  sentenced  even  to  death  ;  and  mention  is  made  of  special 
mulcts  imposed  by  the  people  on  matrons  "  stupri  damnatis  " 
in  A.  U.  C.  497.  The  law  of  Augustus  (lex  Julia  dc  adul- 
ter Us  coercendis,  of  737  A.  U.  C.)  ordained  for  the  guilty 
wife  the  loss  of  half  her  dower  and  one-third  of  her  goods, 
with  relegation,  and  for  her  paramour  similar  relegation 
(but  to  a  different  island),  with  loss  of  one-half  his  property. 
Under  Constantine  the  penalty  of  death,  with  confiscation, 
was  inflicted  on  the  man,  while  exile  continued  to  be  the 
woman's  punishment  (Rein,  Criminalrecht,  835  and  onw), 
By  English  law  adultery  is  considered  only  as  a  private  injury, 
although,  under  the  Commonwealth,  it  was  made  a  capital 
crime  (Blackst.,  iv.,  65).  In  the  states  of  the  American 
Union  it  is  generally  an  offence  against  public  justice,  and  is 
punishable  by  various  terms  of  imprisonment.  Different 
codes  seem  to  differ  in  their  estimate  of  offences  against 
chastity  more  than  as  respects  most  other  classes  of  crimes. 

3.  Combinations  to  do  wrong  are  more  dangerous  to  society 
than  acts  of  individuals  standing  alone,  and  yet  many  of 
those  who  become  involved  in  the  conspiracy  may  have  very 
little  guilt,  as  having  been  induced  by  threats,  misrepresent- 
ations, parental  commands,  or  other  intimate  association  with 
the  prime  movers,  to  join  in  the  plot.  Mere  privity  also  with- 
out active  concurrence  in  some  offences  is  a  crime,  but  the 
criminality  may  be  greatly  reduced  by  the  passive  part  which 
persons  thus  privy  take  in  the  affair;  for  they  may  have 
been  led  by  threats,  or  by  affection  to  persons  engaged  in 
the  conspiracy,  or  by  some  disinterested  motive,  to  conceal 
what  they  know ;  or  may  be  ignorant  how  they  ought  to 
proceed  in  the  matter.  Political  conspiracies  will  often  in- 
volve many  innocent  persons  in  the  knowledge  of  the  designs, 
who,  without  assisting  or  approving,  look  on  disclosure  as 
treachery.      A  government  that  would  punish  with  severity 


THE   PUNITIVE   POWER   OF   THE   STATE.  359 

those  who  thus  stand  on  the  outer  circle  of  guilt  would  deserve 
the  abhorrence  of  the  world.  And  this  shows  that  we  judge 
of  crime  by  an  estimate  of  the  feeling  and  guilt  of  the  per- 
sons involved,  and  not  alone  by  the  evil  done  to  society. 

4.  Want  or  sonic  urgent  necessity  mitigates  violations  of 
the  rights  of  property  which  are  also  treated  as  public  wrongs. 
Thus,  theft  on  the  part  of  a  starving  man  is  one  of  the  most 
venial  of  offences.  Here  we  may  again  mention  the  threats 
which  sometimes  lead  persons  dependent  on  others  to  take  a 
part  in  their  crimes.  In  general  the  subordinate  is  less  cul- 
pable and  deserving  of  punishment  than  the  principal. 

5.  Compound  crimes  may  be  said  to  be  greater,  other  things 
being  equal,  than  either  of  these  of  which  they  consist. 
Thus,  burglary  and  homicide,  even  if  the  latter  was  not  in- 
tended, but  committed  in  self-defence,  make  together  a 
greater  amount  of  crime  than  either  apart,  since  the  burglar 
must  have  been  well  aware  of  the  possibility  of  the  innocent 
householder's  resistance.  So  smuggling  and  violence  to  the 
person  of  custom-house  officers  contain  more  guilt  than  mere 
smuggling  ;  robbery  than  theft  or  violence  alone,  perjury  than 
ordinary  falsehood. 

6.  There  are  several  classes  of  offences  in  regard  to  which 
we  may  entertain  a  reasonable  doubt.  One  of  these  descrip- 
tions is  those  that  are  not  easily  detected,  such  as  taking  bribes 
and  perhaps  counterfeiting.  Here  the  question  is,  ought  the 
punishment  to  be  the  greater  on  account  of  the  difficulty  of 
detection  ?  As  bribery,  for  instance,  is  a  transaction  between 
two  persons,  both  of  whom  are  liable  to  suffer  if  their  guilt  is 
known,  and  the  motive  for  concealment  increases  with  the 
amount  of  penalty,  the  severity  of  the  law  here  defeats  itself. 
Probably  every  object  would  be  gained  if  the  punishments 
varied  between  certain  fixed  and  not  very  wide  limits,  such 
as  deprivation  of  civil  rights  and  a  greater  or  less  term  of  im- 
prisonment. 

Again,  at  times  certain  offences  increase  in  frequency. 
Ought  frequency  to  add  intensity  to  punishment  ?  The  an- 
swer, as  it  seems  to  us,  must  depend   on  the  causes   of  the 


360  POLITICAL   SCIENCE. 

frequency.  If,  for  instance,  in  a  time  of  unusual  want,  theft 
multiplies,  there  seems  to  be  no  great  need  or  reason  for  a 
higher  penalty  For,  if  this  is  the  only  reason,  as  soon  as 
the  times  assume  their  ordinary  form,  the  theft  will  fall  again 
to  its  old  average.  So,  too,  there  seems  to  be  occasionally 
a  contagion  of  crime  ;  one  case  of  it  puts  it  into  the  head  of 
another  person  to  do  the  same,  but  ere  long  the  strange  fasci- 
nation of  evil  passes  away.  Here,  too,  as  the  misdeeds  of 
this  particular  sort  are  not  likely  to  be  lasting,  no  new  terror 
of  penal  law,  no  new  impression  of  the  majesty  of  law  is 
needed.  In  short,  whenever  the  causes  of  crime  are  tempo- 
rary, there  is  no  need  of  severer  law. 

Repeated  offences  of  the  same  person,  as  theft  or  burglary, 
are  generally  regarded,  and  with  reason,  as  calling  for  en- 
hanced punishment,  on  the  ground  that  an  old  offender  is 
both  more  dangerous  and  more  depraved  than  others,  and  is 
also  an  instructor  of  younger  delinquents.  A  second  convic- 
tion implies  greater  hardness,  unless,  indeed,  when  a  man  has 
lost  his  character  by  crime  and  is  in  despair,  he  renews  the 
offence  in  order  to  find  a  refuge  in  prison.  In  such  cases, 
especially,  the  humanity  of  society  does  one  of  its  best  works 
by  establishing  places  of  refuge,  as  well  as  by  corrective 
processes  in  prisons  offering  motives  and  inspiring  hope. 

§  115. 
We  have  said  enough,  without  going  farther,  to  show  that 
Limits  of  amount  there  are  numberless  degrees  of  crime  depend- 
ing on  the  nature  and  character  of  the  offender, 
on  the   nature  of  the  offence,   and  on  other   considerations. 
These  are  enough  to  make  it  evident  that  to   visit  with  the 
same  amount  of  punishment  crimes  called  by  the  same  name, 
would  often  be  a  caricature  of  justice.     To  a  certain   extent 
penalties   must  always  be  a  rude  process,  as  we  can  neither 
measure  guilt  nor  injury.      The  best  remedy  against  this  evil 
which  lies  in  the  imperfection  of  human  nature  is  to  do  what 
Beccaria  so   decidedly  condemns — to  give  the  power,  within 
certain  limits,  to  the  judge,  of  enhancing  or  diminishing  the 


THE   PUNITIVE   TOWER   OF   THE   STATE.  36 1 

infliction  of  evil  on  the  convicted  offender.  This  may  be  and 
is  extensively  done  where  imprisonment,  or  fine,  or  certain 
complex  punishments,  such  as  imprisonment  with  hard  labor, 
are  prescribed  by  law.  The  evil  here  is  that  the  feeling  of 
the  judge  will  influence  the  decision  ;  but  where  a  definite 
time  or  amount  is  set  beyond  which  he  cannot  go,  no  great 
evil  can  result  either  to  the  prisoner  or  to  society,  unless  it 
arise  from  excessive  lenity. 

§  116. 
All  penalty  consists  in  deprivation  of  personal  or  political 

rights,  chiefly  of  the  former.     The  state,  in  pun- 
Kinds  of  penalty.   .,..«. 

ishing,  does  that  to  a  man  which  every  innocent 

man  has  a  right  not  to  suffer.     Thus,  personal  liberty  and  the 
right   of  locomotion  are  taken  away  by  imprisonment,  and 
(relatively  to  the  place  of  the  crime)  by  exile  and  by  deporta- 
tion or  banishment  to  a  particular  spot ;  the  rights  of  property 
are  affected  by  fine  and  confiscation  ;  the  right  of  personal 
honor  by  disgraceful  punishments,  such  as  the  pillory,  and 
that  of  political  honor  by  the   loss  of  citizenship,   or,  as  at 
Athens,  by  the  loss  of  certain  special   political  rights  ;  the 
rights    of    the    person,    externally    considered,    by    corporal 
chastisement ;  the  right  of  life  by  the  punishment  of  death  ; 
and  a  number  of  rights  together  by  penal  slavery.      The  kinds 
of  punishment  may  be  classified,  according  as   they  deprive 
the  criminal  of  life,  of  freedom  wholly  or  in  part,  of  proper- 
ty, as  by  fines,  or  of  civil  honor,  or  expose   him  to  corporal 
punishment,  or  to  some  other  bodily   infliction.     Most  of  the 
penalties  are  enumerated  in  a  fragment  of  some  lost  part  of 
Cicero  de  legibus,  preserved  by  Augustin  (de  Civ.  Dei,  xxi., 
11):  they  are  damnum,  vincula,  vcrbera,    talio,  tgnominia, 
cxsilium,  mors,  scrvitus.     One  or  two  of  these  deserve  some 
remarks.      1.     Damnum,  here  used   in  the  sense  of  money 

payment,  is  not  one  of  the  earliest  kinds  of  pen- 
Fines  or  mulcts. 

alty,  as  fines  could  take  that  form  only  after 
money  became  a  measure  of  value  and  an  instrument  of  ex- 
change.      The    more    common    word   for    a  money-penalty, 


362  POLITICAL   SCIENCE. 

mulct  a  (multa),  has  an  interesting  history,  being  derived 
from  an  old  word,  mttlco,  to  strike,  beat,  cudgel,  connected 
with  mulceo,  to  stroke,  and  possibly  with  mulgco,  to  milk. 
A  mulcta  at  first,  then,  was  a  beating  ;  afterwards  a  payment 
of  sheep  or  other  cattle,  by  way,  perhaps,  of  composition  for 
the  beating,  and  then  of  money  ;  finally  it  took  a  general 
sense,  as  in  the  phrase  morte  multare.  Confiscation  of  a 
man's  whole  property  was  not  in  the  early  times  of  Rome  a 
legal  punishment,  but  was  imposed  by  special  vote  of  the 
people.  Afterwards  it  regularly  accompanied  certain  other 
penalties,  and  finally  went  along  with  all  capital  punish- 
ments. 

Fines  now  are  the  ordinary  penalty  for  violation  of  civil 
ordinances,  which  imply  no  especial  guilt  and  often  arise  out 
of  mere  forgetfulness.  They  are  also  imposed  together  with 
or  alternatively  with  imprisonment  for  many  larger  offences. 
The  objection  against  them  is  that  they  act  unequally,  being 
often  extremely  burdensome  upon  the  poor.  In  some  coun- 
tries they  have  been  calculated  upon  as  a  source  of  revenue 
for  the  public  treasury.  Where  the  judges  have  a  limited 
power  of  determining  the  amount  of  the  fine,  the  inequality 
above  mentioned  may  be  in  part  removed,  yet  it  must  always 
remain  an  objection  against  this  form  of  penalty.  Relatively 
to  other  penalties,  pecuniary  ones,  which  made  the  staple 
of  the  penal  codes  of  the  mediaeval  times,  have  disap- 
peared.* 

Confiscation  of  the  whole  or  a    large  part  of  a  criminal's 
property  is  now   in  little  use.     Its  proper  con- 

Confiscation.  .  .  .   .  ...       -         rr  .         .   . 

nection  is  with  political  offences  and  with  at- 
tempts to  defraud  the  public  revenue.  In  former  times  it 
went  with  heavy  offences,  but  was  objectionable  both  because 
it  harmed  innocent  relatives  more  than  the  criminal,  and  be- 
cause it  laid  a  temptation  before  the  sovereign  to  get  posses- 
sion of  the  property  of  accused  persons  through  judges  whom 
he  could  influence. 

*  Conip.  Prof.   Geyer  in  v.  Holtzendorf 's  Encycl.,  i.,  534. 


THE   rUNITIVE   POWER   OF   THE   STATE.  363 

2.   Imprisonment.   In  early  times  places  for  the  safe-keeping 
of  convicted  transgressors  could  not  have  been 

Confinement.  .  ,  .     .  c 

very  safe  themselves,  and  the  expense  ot  main 
taining  them  may  have  been  an  objection  against  this  form 
of  punishment.  This  was,  as  it  seems,  at  first  used  as  a  method 
of  detaining  the  accused  before  trial  could  be  held.  The 
Roman  practice  of  chaining  some  state  criminals  to  a  soldier, 
which  was  in  vogue  under  the  empire,  was  therefore  a  humane 
method  of  guarding  a  suspected  person  (custodia  militaris). 
Still  more  gentle  was  the  detention  in  a  magistrate's  or  a 
surety's  dwelling  (libera  custodia).  Imprisonment,  however, 
was  a  punishment  in  a  few  exceptional  cases,  as  in  those  of 
slaves,  soldiers,  and  play-actors  (Rein  Criminalr.  d.  Rom., 
p.  914).  So  also  at  Athens  the  prison  was  used  for  confining 
persons  who  could  not  furnish  the  needed  bail;  and  even  in 
some  private  suits  foreigners  were  so  treated.  But  imprison- 
ment was  not  an  ordinary  penalty,  and,  when  it  was  required 
by  law,  was  chiefly  an  accessory  to  some  other.  Thus,  it  is 
said  (Dem.  c.  Timocr.,  §  105,  p.  J  3$)  that  a  thief,  if  the 
thing  stolen  be  not  recovered  by  the  owner,  may  be  kept  in  the 
stocks  five  days  and  nights,  if  the  dikasts  so  decree,  besides 
being  held  to  pay  ten-fold  the  value  of  the  article,  together 
with  other  liabilities. 

At  Rome  imprisonment  may  have  been  in  little  use  for  a 
freeman,  because  it  was  degrading,  too  much  like  the  con- 
finement of  a  slave  in  an  ergastulum.  In  modern  times  it  is 
the  most  frequent  of  all  penalties.  It  is,  unlike  fines,  equal 
for  all  except  in  the  disgrace,  which  ought  to  have  been 
thought  of  by  the  criminal  of  good  condition  when  he  was 
tempted  ;  it  is  of  variable  length,  so  as  to  furnish  a  measure 
for  all  offences  except  the  highest  ;  it  contains  no  vindictive 
element,  so  that  the  prisoner  need  not  look  on  society  as 
his  foe  ;  it  allows  the  use  of  hard  labor,  or  other  enhance- 
ments, temporary  or  permanent  ;  it  supplies  the  hope  of 
earlier  release  than  the  term  of  confinement  prescribed  in  the 
sentence,  as  a  reward  for  good  conduct ;  it  helps  all  corrective 
influences  that  modern  humanity  can  bring  to  bear  on  prison- 


364  TOLITICAL   SCIENCE. 

ers.  On  the  other  hand,  it  is  expensive,  even  if  the  power 
of  labor  is  fully  made  use  of;  it  is  sometimes  a  better  kind 
of  life  than  the  prisoner  had  when  he  was  free,  so  that  he  will 
commit  a  new  crime  for  the  privilege  of  going  again  into  pris- 
on ;  it  is  for  certain  natures  almost  a  refuge  ;  and  the  inter- 
course of  prisoners  is  often  more  corrupting  to  young  offend- 
ers than  any  other  punishment  could  be.  There  is  danger 
also  of  its  being  too  much  shortened  in  its  term  by  misplaced 
humanity. 

3.  Servitude  or  penal  labor.    Hard  labor  is  often  connected 
with  imprisonment,  and  a  distinction  is  made 

Penal  labor.  ....... 

between  mere  confinement  in  a  jail  and  confine- 
ment with  hard  labor.  The  motives  of  the  state  may  be 
mixed  in  requiring  this  temporary  servitude;  it  may  be 
thought  to  benefit  the  prisoner,  or  lessen  the  cost  of  keeping 
him,  or  to  be  a  kind  of  retaliation  for  vagrancy.  Slavery  as 
a  penalty  seems  to  have  been  little  known  in  Greece  *  or  in 
Rome.  In  modern  times  the  most  conspicuous  instances  of 
it  are  condemnation  to  the  galleys,  as  among  the  French, 
which  might  be  perpetual  or  temporary,  and  deportation 
with  hard  labor,  as  known  to  the  English.  The  galley-slave 
was  branded,  and  in  the  seventeenth  century,  if  he  mutilated 
himself  to  avoid  the  hard  labor  at  the  oar,  suffered  death. 
This  penalty  seems  to  have  been  introduced  in  the  sixteenth 
century.  The  first  ordinance  that  speaks  of  it  belongs  to 
1548,  but  it  was  in  use  before  that  year.f  Sentence  to  a 
penal  colony  was  a  relief  from  the  necessity  of  inflicting 
death,  when  the  English  laws,  especially  in  reference  to  crimes 
against  property,  were  extremely  harsh,  before  Sir  R.  Peel's 
reforms,  and  it  helped  to  found  colonies  and  break  up  the 
soil  in  new  countries  ;  but  such  a  colony  cannot  in  the  end  be 
of  great  advantage.  Confinement  with  hard  labor  for  life, 
which  is  a  received  penalty,  ranks  among  the  heaviest  of  all, 
since  it  may  include  the  ignominy  and  the  infliction  of  cor- 

*  Comp.  K.  F.  Herm.,  Gr.  Antiq.,  iii.,  §  72.  Schom.  Gr.  Alt.,  i.,  492. 
f  See   Stein,  in  vol.   iii.,   p.  614,  of  Warnkonig    u.   Stein's  Franz. 
Staats  u.  Kcchtscresch. 


THE   PUNITIVE   POWER   OF   THE   STATE.  365 

poral  punishment,  with  the  loss  of  liberty  and   compulsory 
labor  in  the  state's  service. 

4.  Verbera.  Corporal  punishment  by  the  whip,  cane,  or 
corporal  punish-  cudgel,  was  almost  unknown  to  the  Romans. 
While  beating  with  a  fustis  or  cudgel  was  used 
for  military  crimes,  and  slaves  were  punished  with  flagellation, 
the  person  of  the  free  citizen,  out  of  the  camp,  was  in  a  man- 
ner sacred  (Rein.,  u.  s.,  915)-  Whipping  and  other  simi- 
lar bodily  inflictions  are  common  enough  in  various  parts  of 
the  world,  but  are  going  out  of  use  in  the  most  civilized  lands. 
Formerly,  in  the  older  parts  of  the  United  States,  certain 
evil-doers  were  publicly  flogged  at  the  whipping-post ;  but 
the  penalty  and  the  whipping-post  have  disappeared  every- 
where except  in  one  or  two  states.  So  it  is  also  in  other 
countries.  Prof.  Geyer  says  (von  Holtzendorf's  Encycl.,  i., 
537),  that  "  corporal  punishment  has  kept  its  ground  until 
the  most  recent  time,  as  the  last  relique  of  the  bodily  chas- 
tisements which  formerly  were  so  common,  and  which  still 
find  a  few  earnest  defenders.  Even  after  the  revolution  of  the 
year  1848  had  swept  it  away,  it  was  held  to  be  necessary  to 
bring  it  back  again,  even  in  highly  civilized  Saxony.  Of  late 
(he  writes  in  or  before  1870),  it  has  almost  everywhere  been 
set  aside  again,  and  subsists  still  only  in  Saxe-Altenburg,  and 
on  a  larger  scale  in  the  two  Mecklenburgs."  In  Great  Bri- 
tain this  class  of  punishments  has  not  yet  been  abolished,  but 
is  destined  erelong  to  cease.  In  Russia,  under  Catherine  II., 
and  in  Poland  at  the  same  epoch,  nobles  and  maids  of  honor 
were  flogged,  as  even  now,  in  China,  mandarins  of  the  high- 
est rank  are  subjected  to  the  bamboo.* 

What  is  to  be  thought  of  this  tendency  to  put  an  end  to  all 
bodily  castigations  ?  Ought  they  all  to  go  out  with  the  more 
cruel  ones,  such  as  mutilation,  branding,  the  strappado,  or 
the  more  disgraceful,  as  exposure  in  the  pillory  or  the  stocks  ? 
Their  principal  merit,  as  Bentham  observes,  is  their  "exem- 
plarity."     But  the  actual  sight,  by  one  or  two  hundred  vaga- 

*Comp.  Bentham's  Rationale  of  Punishment,  p.  84,  who  does  not 
express  himself  decidedly  against  whipping. 


366  POLITICAL   SCIENCE. 

bonds,  of  a  man  whipped  at  a  post,  and  the  hearing  of  his 
cries  for  a  minute  or  two — cries  so  much  the  louder  as  he 
hopes  to  make  the  torturer  believe  that  the  pain  is  much 
greater  than  it  is — will  this  public  spectacle,  or  the  knowledge 
of  a  very  brief  punishment,  have  as  great  an  effect  as  the 
knowledge  of  his  confinement  would  have,  or  of  his  being 
put  at  hard  labor  for  a  few  weeks  or  months  ?  On  the  other 
hand,  all  ignominious  punishments,  especially  if  submitted 
to  in  public,  must  destroy  a  man's  spirit  and  self-respect.  He 
loses  the  power  of  rising  again  to  the  level  of  his  fellow-men. 
Punish  him  as  he  deserves,  but  not  so  as  to  extinguish  the 
sparks  of  a  nobler  life  that  may  have  survived  his  crime. 
Even  bodily  chastisement  in  penitentiaries,  where  no  one 
knows  of  them,  are  said  to  be  of  no  use  by  men  best  acquainted 
with  prison  discipline.  And  in  general  no  penalties  ought  to 
send  a  man  back  into  the  world  with  his  body  or  mind  injured, 
or  his  spirit  broken,  so  far  as  this  is  not  inevitable.  Other- 
wise he  resumes  his  rights  without  a  capacity  to  exercise 
them  to  advantage 

5.  Ignominy,  that  is,  loss  or  diminution  of  honor  or  of 
one's  good  name,  especially  as  related  to  honor 
in  the  sense  of  honorable  offices  or  political 
privileges,  was  at  Rome  a  concomitant  of  certain  other  pen- 
alties, as  relegation  and  corporal  punishment,  or  was  the 
main  punishment  for  other  crimes,  as  extortion  in  a  provin- 
cial office,  where  the  convicted  magistrate  was  thenceforth 
improbus  et  intestabilis  (unable  to  act  as  a  witness  or  a  testa- 
tor). Infamy,  ex  cdicto>  took  away  the  right  to  vote  or  hold 
office,  with  certain  other  rights,  on  conviction  of  perjury  as 
the  sole  penalty,  and  in  connection  with  other  penalties,  in 
the  case  of  a  number  of  other  crimes.  Certain  offences, 
again,  involved  the  loss  of  a  seat  in  the  senate. 

The  Athenians  followed  a  similar  plan  of  visiting  certain 
misdeeds,  especially  in  the  political   sphere,  with  atimia,  or 
loss  of  some  or  of  all  political  and  civil  rights.     The  orator' 
Andocides  (de  mysteriis,  p.  36,  Reiske)  mentions  several  de- 
scriptions of  atimia.     One  kind  consisted  in  prohibiting  per- 


THE   PUNITIVE   POWER   OF   THE   STATE.  367 

sons  convicted  of  certain  misdemeanors  from  doing  some 
particular  act  which  other  citizens  were  free  to  do,  such  as 
speaking  in  the  assembly,  or  holding  the  .office  of  a  council- 
man, acting  as  a  public  prosecutor,  going  into  the  agora,  or 
sailing  to  Ionia  or  to  the  Hellespont.  To  this  kind  of  atimia 
belonged  the  forfeiture  of  the  right  of  bringing  this  or  that 
particular  suit,  when  a  public  accuser  had  not  received  one- 
fifth  of  the  votes  of  the  court,  or  when  he  had  brought  a 
public  suit  and  abandoned  it.  Besides  this  partial  loss  of 
citizens'  rights,  there  was  a  complete  loss  of  them,  accompa- 
nied, in  some  cases,  with  confiscation.  The  offences  for 
which  this  was  a  penalty  were  such  as  bribery ;  embezzlement; 
false  witness  ;  and  false  declaration,  thrice  repeated  of  being 
present  at  the  summons  of  a  defendant  by  a  plaintiff  before  a 
magistrate,  which  was  necessary  before  commencing  a  suit  ; 
cowardice  in  war ;  failure  in  filial  piety  ;  injuries  done  to  a  per- 
son acting  for  the  state  while  in  the  discharge  of  his  duties  ; 
partiality  of  an  arbitrator,  and  some  others.  It  is  also  men- 
tioned by  Andocides  that  the  penalty  of  atimia  went  down  to 
the  children  of  the  two  first  classes  of  criminals — those  found 
guilty  of  receiving  bribes  or  of  embezzling  public  money.  In 
other  states  of  Greece  the  same  penalty,  without  doubt,  pre- 
vailed, as  it  did  at  Sparta  (comp.  K.  O.  M  tiller,  Dorier  ii., 

223).* 

No  objection  can  be  brought  of  any  weight  against  making 
disfranchisement  by  itself  a  penalty  for  some  offences,  espe- 
cially for  those  which  tend  to  corrupt  the  political  system.  Both 
he  who  offers,  and  he  who  receives  bribes  are  equally  unfit  to 
vote  or  hold  office  ;  and  no  examples  of  punishment  could  be 
more  calculated  to  purify  the  polls.  In  some  of  the  United 
States,  no  person  giving  or  accepting  a  challenge  can  sit  in 
either  branch  of  the  legislature,  the  reason  for  which  disquali- 
fication lies  in  the  fact  that  duelling  generally  grows  out  of 
political  contests.     But  it  appears  to  be  much  more  suitable 

*  I  have  used  Andocides  (loc.  cit.)  and  followed  K.  F.  Hermann, 
Gr.  Antiq.,  i.,  §  124,  rather  than  Meier  and  Schomann  Att.  Proa, 
p.  563,  in  making  two  rather  than  three  sorts  of  atimia. 


368  POLITICAL   SCIENCE. 

to  visit  embezzlement,  bribery,  "  ballot-stuffing,"  fraudulent 
voting,  fraudulent  rejection  of  votes,  and  the  other  offences 
against  the  purity  of  elections,  with  a  penalty  which  would 
take  away  for  a  time,  or  perpetually,  the  privileges  of  a  citi- 
zen with  full  rights,  than  thus  to  punish  crimes  which  the 
public  opinion  of  some  communities  does  not  condemn. 
This,  further,  is  a  penalty  well  suited  to  times  and  to  states 
where  universal  suffrage  and  the  arts  of  the  demagogue  flour- 
ish. It  may,  however,  be  questioned  whether  a  voting  com 
munity,  where  corrupt  practices  at  elections  have  been  rife, 
should  be  disfranchised  in  mass,  as  has  been  done  sometimes 
in  England.  In  justice  to  the  honest  citizens  of  such  a  place, 
no  more  ought  to  be  done  than  to  pronounce  a  dishonest 
election  void,  and  let  the  place  go  unrepresented  for  the  time, 
punishing  those  with  disfranchisement  who  have  had  any 
participation  in  the  frauds. 

Besides  advocating  the  free  use  of  penalties  like  ignominy 
or  political  dishonor  for  misdemeanors  especially  political, 
we  suggest  that  it  be  applied  in  other  cases  such  as  show  an 
unfitness  to  discharge  the  duties  of  voting  or  holding  office, 
of  sitting  on  juries,  etc.  All  convictions  for  theft,  all  arrests 
for  drunkenness,  all  assaults  and  brawls,  for  which  imprison- 
ment for  any  length  of  time  is  the  stated  penalty,  all  con- 
victions for  frauds  in  business  involving  a  similar  punishment, 
—in  fact,  all  that  renders  a  man  ignominious  as  well  as  amen- 
able to  the  criminal  law,  should  have  this  as  a  concomitant 
of  the  main  penalty,  on  the  ground  that  suffrage  and  office 
are  privileges  to  be  won  at  first  and  kept  afterwards  by  good 
and  honorable  conduct.  The  penalty,  however,  should  be 
temporary  at  least  for  minor  offences. 

6.  Talio,  from  talis,  like,  of  such  a  sort,  denotes  no  spe- 
Taiio,  or  like  pen-  Cl^c  punishment,  but  only  the  likeness  or  iden- 
tity of  the  injury  and  the  retribution.  It  is 
natural  in  a  rude  state  of  society  to  measure  the  requital  by 
the  original  act.  The  wrong  is  looked  on  as  a  debt,  demand- 
ing an  equivalent.  It  is  natural  also  in  all  altercations,  when 
men  give  way  to  resentment,  to  render  back  what  has  been 


THE   PUNITIVE   FOWER   OF  THE   STATE.  369 

received — blow  for  blow,  a  slap  on  the  face  for  a  slap  on  the 
face,  and  so  on.  From  the  early  contests  of  children  with 
one  another  we  may  infer  the  same  thing. 

Talio  is  most  interesting  in  the  history  of  punishment,  be- 
cause the  early  laws  are  full  of  it,  and  also  because  some 
philosophers  of  great  name,  as  we  have  seen,  regard  it  as 
lying  at  the  very  foundation  of  punitive  justice  (See  §110.) 
It  appears  in  the  code  of  the  Old  Testament.  Thus,  we  have 
in  Exod.  xxi.,  23-25  (comp.  Levit.,  xxiv.,  19,  20),  "  life  for 
life,  eye  for  eye,  tooth  for  tooth,  hand  for  hand,  foot  for  foot, 
burning  for  burning  (z.  c,  mark  of  burning  on  a  part  of  the 
body),  wound  for  wound,  stripe  for  stripe  "  (comp.  Kno- 
bel's  comment  on  this  place).  So  in  Deut.,  xix.,  21,  the  law 
imposes  on  the  false  witness  what  he  thought  to  do  to  his 
brother:  "  life  shall  go  for  life,"  etc.  The  ^Egyptians  had 
a  similar  law  for  the  same  case  (Diod.  Sic,  i.,  yj),  where, 
however,  it  is  also  said  that  perjury  was  a  mortal  crime.  The 
Roman  law  under  the  emperors  supplies  somewhat  of  an 
analogy  to  this,  when  talio  was  applied  in  cases  of  malicious 
accusation  of  an  innocent  person,  the  accuser  being  obliged, 
from  Constantius  onward,  to  give  his  consent  to  this;  when 
he  signed  his  name  on  the  list  of  cases  and  on  the  form  of 
accusation.  In  the  Laws  of  Manu  also  talio  appears  (B. 
viii.,  278  onw.,  in  the  transl.  of  Deslongchamps).  Thus, 
"  whatever  member  of  his  body  a  man  of  low  birth  uses  to 
strike  a  superior,  that  member  ought  to  be  mutilated  ;  such 
is  Manu's  order"  (279).  "  If  he  raised  the  hand  or  a  stick 
against  him,  he  must  have  his  hand  cut  off;  if  in  a  fit  of 
anger  he  kicked  him,  his  foot  must  be  cut  off"  (280).  The 
talio  aimed  at  in  No.  282  is  more  astonishing.  Greek  law 
used  retaliation  to  some  extent,  as  the  story  given  by  Demos- 
thenes of  the  one-eyed  Locrian  shows  (c.  Timocr.,  §140).* 
And  to  go  no  farther,  the  laws  of  the  twelve  tables  con- 
tained this  provision,    "  si   membrum  rupit,  ni  cum  eo  pacit, 

*  Comp.  the  notices  in  K.  F.   Hermann's   Gr.   Antiq.,  iii.,  §  69, 
note  9.      Compositions  were  then  practised  in  Greece. 
24 


370  POLITICAL   SCIENCE. 

talio  esto,"  which  is  of  great  value  as  showing  that  compo- 
sitions for  injury  were  in  use. 

Retaliation,  as  a  rule  and  measure  of  punishment,  is  looked 
on  by  some  of  the  Greek  poets  and  philosophers  as  very 
natural  and  just.  In  a  noble  passage  of  the  Choephorae 
(v.,  309)  ^Eschylus  expresses  himself  thus  :  "In  return  for  a 
hostile  tongue  (for  words  of  enmity),  let  a  hostile  tongue  be 
paid  back.  Thus  justice  cries  aloud,  exacting  what  is  due. 
And  in  return  for  a  murderous  blow  let  one  give  again  a 
murderous  blow.  He  who  has  done  must  suffer.  This  a 
thrice-old  proverb  declareth."  Such  is  the  voice  of  the 
ministers  of  divine  justice,  which  again  (v.,  400)  proclaims 
the  law  to  be,  "  that  drops  of  blood  spilt  on  the  ground  de- 
mand in  return  other  blood."  So  also  Plato,  in  respect  to 
certain  kinds  of  intentional  homicide,  takes  much  the  same 
ground.  First  he  says  (Laws,  ix.,  870,  E.)  that  "  there  is  a 
tradition  believed  by  many,  which  has  been  received  from 
those  who  are  learned  in  the  mysteries  ;  they  say  that  such 
crimes  will  be  punished  in  the  world  below,  and  that,  when 
the  perpetrators  return  to  this  world,  they  will  suffer  what 
they  had  wrought,  by  a  compensation  of  nature,  and  end 
their  lives  in  like  manner  by  the  hand  of  another."  Then,  a 
little  after,  he  speaks  of  priests  of  old  who  have  pronounced 
"  that  the  justice  which  inspects  and  avenges  the  blood  of 
kindred  follows  the  law  of  retaliation,  and  ordains  that  he 
who  has  done  any  murderous  act  should  of  necessity  suffer 
the  same.  He  who  has  slain  a  father,  shall  himself  be  slain 
at  some  time  or  other  by  his  children,  and  if  he  have  slain 
his  mother,  he  shall  of  necessity  take  a  woman's  nature  and 
lose  his  life  at  the  hand  of  his  offspring  in  after-ages.  For 
where  a  family  is  polluted  with  blood,  there  is  no  other  puri- 
fication, nor  can  the  pollution  be  washed  out,  until  the  homi- 
cidal soul  which  did  the  deed  has  given  life  for  life"  (872, 
D.,  E.,  Jowett's  transl.).  But  this  is  not  Plato's  enactment,  it 
is  only  an  embellishment  drawn  from  the  earlier  views  of 
divine  justice  and  of  ate. 

It  appears  from  all  this  that  talio  was  adopted  in  very  old 


THE   PUNITIVE   POWER   OF   THE   STATE.  37 1 

times  as  a  rule  for  measuring  punishment  due  to  some  kind 
of  crimes.  But  it  must  have  appeared  to  be  a  rule  inappli- 
cable to  many  kinds  of  offences.  There  is  no  evidence  that 
it  was  ever  the  basis  of  even  the  rudest  code  of  criminal  law, 
and  it  is  quite  probable  that  where,  in  some  kinds  of  personal 
wrongs,  it  gave  the  measure  of  punishment,  it  was  early 
superseded.  It  was  mechanical  and  outward,  having  respect 
rather  to  the  wrong  than  to  the  intention.*  It  could  be  ap- 
plied in  the  case  of  injuries  to  the  person,  but  in  such  a  rude 
way  that  the  loss  to  the  injured  party  was  still  much  the 
greater.  It  could  be  applied  in  some  instances  of  injury  to 
property,  but  only  if  the  wrong-doer  had  property  of  his 
own  to  be  injured  ;  but  strict  talio  towards  a  thief,  that  is 
stealing  his  property  jure,  would  be  absurd.  But  to  wrongs 
against  the  state  or  the  rights  of  the  community  and  to  most 
private  wrongs  it  had  no  applicability;  which  shows  that  it 
was  from  the  first  very  limited  in  its  measure  of  wrongs,  or 
that  it  arose  when  much  of  the  justice  of  mankind  was  in  the 
hands  of  septs  or  families. f  Talio,  as  furnishing  the  rule  of 
life  for  life,  brings  us  to  the  penalty  of  death. 

*  Cic.  de  leg.,  iii.  20,  46,  seems  to  like  a  certain  correspondence 
of  crime  and  punishment.  "  Noxice  poena  par  esto,  ut  in  suo  vitio 
quisque  plectatur  :  vis,  capite  ;  avaritia,  multa  ;  honoris  cupiditas,  ig- 
nominia  sanciatur." 

f  Philo  touches  the  Hebrew  law  of  talio  in  his  treatise  de  spec. 
leg.,  §  33,  et  seq.  (ii.,  330,  ed.  Mangey) :  "  One  must  with  reason 
blame  those  who  enact  penalties  for  things  done  which  are  unlike 
the  injuries,  as  fines  in  money  for  personal  assaults,  or  ignominy  for 
wounding  and  maiming,  or  forced  exile  for  voluntary  homicide,  or 
imprisonment  for  theft.  For  the  uneven  and  unlike  are  in  contra- 
diction with  a  polity  that  aims  at  truth.  Our  law  is  the  minister  of 
equality,  in  that  it  commands  transgressors  to  suffer  things  like  what 
they  have  done  ;  in  their  substance,  if  they  wrong  a  neighbor  in  his 
substance  ;  in  their  bodies,  if  they  transgress  against  bodies  in  their 
parts,  or  members,  or  organs  of  sense  ;  and  if  they  plot  so  as  to 
reach  even  the  life,  it  commands  that  they  be  punished  even  unto 
the  loss  of  life.  For  to  inflict  other  punishments,  having  nothing 
in  common  with  what  is  done,  but  unlike  in  kind,  belongs  to  those 
who  dissolve  and  not  to  those  who  establish  laws."  This  gives  a 
fair  specimen  of  a  loose  kind  of  reasoning  from  which  modern  phi- 
losophers cannot   escape.     What    is  the  likeness  or  unlikeness    of 


372  POLITICAL   SCIENCE. 

§  117- 
No  crime  excites  greater  horror  than  murder,  and  however 
we  explain  it,  life  for  life  has  always  seemed  to 

Capital  punishment. 

men  a  fitting  penalty,  when  it  was  committed 
with  design  Law  has  always  made  a  distinction  between 
manslaughter  without  previous  intention  and  murder  properly 
so  called.  Thus,  while  cities  of  refuge  were  provided  undei 
Hebrew  law,  to  which  a  man  who  killed  his  neighbor  without 
hating  him  in  times  past  might  flee  from  the  go'el  or  avenger 
of  blood  ;  if  a  person  who  had  designedly  slain  another 
should  seek  to  take  the  benefit  of  the  law,  the  elders  of  his 
city  could  demand  him  back  and  give  him  over  to  the  go'el, 
who  acted  as  an  executioner.  In  Greece  or  at  least  in 
Athens,  by  old  usage,  if  the  man-slayer  fled,  the  murdered 
person's  relatives  were  entitled  to  seize  on  hostages  in  the 
country  harboring   him  ;  and    if  he   were  delivered  up  and 

crime  and  punishment  ?  Is  it  outward  likeness  ?  Can  you  measure 
the  crime  by  its  effects  ?  There  must  be  a  proportion,  as  far  as  can 
be,  between  the  crime  and  the  punishment ;  and  between  the  punish- 
ment of  different  crimes  and  their  penalties  there  must  be  a  desert 
of  punishment  to  start  with,  but  how  can  likeness  or  equality  go  be- 
yond the  moral  impression  commensurate  with  the  offence,  as  con- 
veyed by  the  law.  As  for  Hebrew  talio,  Michaelis,  Saalschiitz,  Sal- 
vador, decide  that  the  lawgiver  simply  states,  in  Exod.  xxi.,  23,  and 
elsewhere,  the  general  standard,  the  jural  basis,  according  to  which 
exceptional  assaults  on  the  person  were  to  be  judged.  Comp.  Saal- 
schiitz, Mos.  Recht,  chap.  57,  who  quotes  Salvador  as  remarking 
that  "  la  peine  du  talion  est  un  principe  plutot  qu'  une  loi.  Comme 
loi,  elle  ne  pent  pas,  elle  ne  veut  pas,  en  general,  etre  executee." 
He  also  declares  (notes  567,  568)  that  the  Rabbins  most  positively 
assert  that  no  talio,  according  to  tradition,  was  in  practice,  but  only 
damages  in  money  for  such  offences.  But  here  comes  back  again 
the  old  difficulty,  What  is  the  likeness  or  equivalency  between  kill- 
ing a  man  and  the  weregild  ?  I  can  see  no  other  than  equivalent 
loss  sustained  by  the  dead  man's  family.  It  was  found  that  so  many 
solidi  would  be  about  equal  to  the  pecuniary  worth  of  his  life,  to 
those  who  were  in  the  family  union  with  him.  So  of  other  wrongs 
to  the  person.  This  at  last  became  the  measure  for  the  injury  to 
society.  The  guilt  was  not  much  taken  into  account,  although  guilt 
was  assumed. 


THE   PUNITIVE   POWER   OF   THE   STATE.  373 

found  to  have  done  the  deed  with  forethought,  he  suffered 
death,  at  which  his  accuser  was  entitled  to  be  present.  If  he 
was  judged  to  have  slain  a  man  without  forethought,  he 
was  obliged  to  leave  the  country  until  he  got  leave  to  return 
from  the  dead  man's  kinsmen.  The  murder  of  a  citizen  was 
visited  in  the  historic  times  with  death,  or  in  case  of  flight  to 
perpetual  exile  and  confiscation  of  property.  At  Rome,  the 
primeval  law,  remaining  probably  unaltered  in  the  twelve 
tables,  ran  thus :  "si  quis  hominem  liberum  dolo  sciens 
morti  duit,  parricidas  esto,"  i.  e.,  "if  anyone  with  evil  inten- 
tion, knowingly  put  a  freeman  to  death,  let  him  be  a  parri- 
cide," that  is,  let  him  be  judged  by  the  same  law  and  before 
the  same  tribunal  with  parricides,  and  receive  the  same  pun- 
ishment of  death.  But  the  unintentional  manslayer  offered  a 
ram  in  sacrifice  before  a  gathering  of  his  agnates  and  went 
away  clear.*  The  Germans,  when  we  first  learn  what  their 
institutions  were,  seem  to  have  regarded  all  taking  of  life, 
voluntary  and  involuntary,  as  something  which  it  was  the 
business  not  of  the  community,  but  of  the  family,  to  follow  up. 
Life  has  its  stated  price  ;  blood-revenge,  or  composition  for 
it,  measured  by  the  dignity  and  quality  of  the  person  slain, 
was  in  vogue  through  all  the  tribes.  There  were,  however, 
crimes  punished  by  death,  such  as  immediately  concerned  the 
state  and  not  the  family;  and  the  number  of  modes  of  put- 
ting criminals  to  death  in  the  mediaeval  law  of  Germany, 
shows  anything  but  humanity. f  Finally,  to  give  one  illus- 
tration of  ancient  feeling  and  practice  from  outside  of  Eu- 
rope— the  ancient  laws  of  India,  while  they,  condemn  thieves 
and  the  helpers  of  thieves,  with  various  other  transgressors, 
to  death,  and  are  cruel  in  their  ways  of  punishment  and  of 
execution,  do  not  seem  to  save  their  harshest  penalties  for 
the  crime  of  murder.  The  murderer  of  a  Brahmin,  for  instance, 
is  to  be  branded  with  the  figure  of  a  man  without  a  head,  to 
be  excluded  from  human  intercourse  and   be  forsaken  by  his 

*  Rein.  Criminal  R.,  401  et  seq. 

f  See  the  list  of  them  in  Grimm   D.    Rechtsalterth.,  pp.  682-701, 
ed.  1,  and  Osenbruggen,  Alamann.  Recht,  §§  40-42. 


374  POLITICAL   SCIENCE. 

relations.  If  a  Brahmin  committed  such  murder  with  pre* 
meditation,  his  penalty  was  exile,  but  he  could  take  his  effects 
and  his  family  with  him.  If  a  man  of  the  other  castes  did 
the  same  with  premeditation,  he  was  to  suffer  death.  (Laws 
of  Manu,  Deslongchamp's  transl.,  book  ix.,  235,  241,  242). 
Expiations,  however,  were  allowed  in  such  cases.  A  person 
of  the  military  caste,  having  committed  this  crime,  might 
offer  himself  to  archers  made  aware  of  his  desire  to  expiate 
the  murder,  or  throw  himself  thrice,  or  until  he  died,  head 
foremost  into  a  burning  fire  (xi.,   7$).* 

Many  other  crimes  of  high  degree,  especially  those  against 
the  state,  have  been  visited,  in  most  countries,  with  death  ; 
but  as  a  penalty  for  intentional  manslaughter,  this  is  probably 
far  more  general  than  others.  Why  the  penalty  and  the 
crime  thus  afforded  originally  an  instance  of  talio,  I  will  not 
stop  to  ask.  It  may  have  been  that  murder  being  highest 
in  degree  among  the  crimes  committed  against  individuals, 
and  the  taking  of  life  the  greatest  loss,  the  equality  fitly  ex- 
pressed the  horror  of  society  at  the  wrong  and  the  desert  of 
the  wrong-doer.  Or  it  might  be  that  the  protection  of  the 
community  demanded  this  at  a  time  when  prisons  were  inse- 
cure. Or  the  culprit  might  be  conceived  of  as  at  war  with 
society.  More  important  for  our  purpose  is  it  to  inquire 
Right  to  punish  whether  society  or  the  state  has  the  right  to  take 
capitally.  tjie  jjfe  Qf  one  Qf  jts  members.     We  have  al- 

ready seen  that  such  a  right  cannot  be  derived  from  the  right 
of  the  criminal  to  dispose  of  his  own  life,  which  would  be  to 
transfer  the  power  of  punishing  himself  capitally  to  another 
authority;  nor  from  the  murdered  man's  right  to  defend  him- 
self, which  has  ceased  with  death.  But  what  is  the  need  of 
asking  whether  life  may  be  taken  away,  if  stripes,  incarcera- 
tion for  life,  deprivation  of  any  or  of  all  other  rights  except 
life,  are  permissible  ?  What  is  the  so  radical  distinction  be- 
tween this  and  exile  or  life-long  confinement,  that  we  should 
hesitate  about  the  one  more  than  about  the  others  ?     It  really 

*Comp.   Duncker  Gesch.  d.    Arier,  ed.  3,  p.  155. 


THE   PUNITIVE   POWER   OF   THE   STATE.  375 

seems  like  straining  at  a  gnat  and  swallowing  a  camel,  to  de- 
mand that  hundreds  and  thousands  of  citizens,  innocent  and 
useful,  for  whose  protection  the  state  exists,  shall  expose 
their  lives  in  war,  with  the  certainty  that  many  of  them  will 
be  killed,  and  to  hesitate  in  regard  to  the  rightfulness  of  the 
death  penalty. 

As  for  the  expediency  of  this  penalty  there  is  more  room 
Expediency  of  cap-  f°r  doubt.     The  subject  does  not  strictly  per- 

ital  punishment.  ^   tQ   ^  disCUSSion,    SQ   that  T    wjU  content   my- 

self  with  a  word  or  two  concerning  it.  Some  of  the  principal 
difficulties  attending  the  penalty  of  death  for  murder,  are  : 

1.  The  consideration  that  the  consequences  of  a  wrong  de- 
cision cannot  be  remedied,  unless  a  long  time  intervenes 
between  the  sentence  and  the  execution,  which  is  itself  an 
evil,  as  destroying  much  of  the  moral  impression.  Suppose 
a  prisoner  to  have  been  kept  twenty  years  in  prison,  and  then 
be  put  to  death.  Who  would  not  feel  the  uselessness  of  so 
late  a  following  up  of  the  verdict  ? 

2.  Some,  perhaps  many,  persons  tried  for  murder,  escape 
conviction  through  the  jury's  fear  of  giving  a  verdict  that  is 
irreparable. 

3.  Pardons,  after  conviction  of  murder,  are  made  easier  by 
the  same  consideration. 

4.  The  border-line  between  the  worst  kinds  of  manslaughter 
and  the  least  enormous  murders  is  so  indistinct,  that  they 
seem  to  differ  in  name  only.  Hence,  in  some  cases,  there  is 
a  doubt,  in  favor  of  which  humanity  casts  its  vote. 

5.  In  all  punishments  regard  must  be  had  to  the  feelings  of 
the  society.  If  opinion  settles  down  decidedly  in  favor  of 
abolishing  capital  punishment,  the  uses  of  it  in  part  come  to 
an  end. 

On  the  other  hand  it  may  well  be  asked  (1)  whether  the 
increasing  humanity  of  the  times  is  an  entirely  moral  senti- 
ment, whether  it  may  not  in  part  be  due  to  a  greater  sensi- 
bility to  physical  pain,  to  a  more  delicate  nervous  organization, 
and  may  not  need  to  be  counteracted  rather  than  obeyed. 

2.  The  almost  universal  resort  to  punishment  by  death  in 


$j6  POLITICAL   SCIENCE. 

the  past  shows  that  a  long  experience  has  not  found  it  unne- 
cessary or  too  severe  an  expression  of  the  ill-deserts  of  certain 
criminals. 

3.  It  is  a  motive  of  greater  weight  than  any  other  to  deter 
from  the  crime.  Some  speak  of  solitary  confinement  for  life 
as  a  greater.  Perhaps  it  is,  and  certainly  it  is  objectionable 
as  injuring  the  reason  of  the  sufferer.  But  lifelong  imprison- 
ment at  hard  work,  with  the  unavoidable  hope  of  being  re- 
leased after  long  good  behavior,  is  certainly  a  motive  for 
wrong-doers  of  less  strength  than  the  fear  of  suffering  a  death 
of  disgrace.  If  so,  murder  in  connection  with  another  crime 
will  be  more  frequent ;  because,  if  discovered,  the  criminal 
will  not  have  to  suffer  much  more  than  for  the  primary  crime, 
and  may  also,  by  the  murder,  secure  his  escape. 

4.  If,  where  capital  punishment  has  been  abolished,  crimes, 
capital  before,  have  not  increased  in  their  ratio  to  others  or 
to  the  population,  this,  as  yet,  is  not  a  sufficient  indication  of 
the  ultimate  tendency.  Crimes  of  violence  tend  to  diminish 
with  the  increase  of  civilizing  influences.  A  good  police  will 
prevent  many  crimes.  The  criminal  classes  may  have  been 
more  reached  than  formerly  by  moral  and  religious  truth. 
Humane  institutions  add  what  weight  they  have  to  other 
causes.  Emigration,  by  opening  better  prospects  to  the 
poorer  classes,  keeps  them  from  crime.  On  the  whole,  it  is  as 
yet  uncertain  whether  the  death  penalty  can  be  given  up  with 
safety.* 

§  118. 
8.   Exile.     To  be   sent  away  from  one's  country,  of  old, 
was  a  very  great  evil,  second  only  to  death,  and 

8.  Exile. 

reserved  for  great  criminals.  The  world  has 
now  changed  so  much  that  mere  absence  from  one's  native 
land  will  not,  in  many  cases,  seem  to  be  a  great  hardship. 
Bentham  tells  us  of  an  older  culprit  rebuking  a  younger,  who 
wept  when  sentenced  to  transportation,  and  asking  him  if  he 

*  Comp.  v.  Holtzendorf,  das  Verbrechen  des  Monies  and  die  Todes- 
strafe,  1875,  who  advocates  the  abolition  of  the  death-penalty. 


THE    PUNITIVE   POWER   OF  THE   STATE.  377 

should  weep  in  case  he  had  to  go  on  the  grand  tour.  De- 
portation to  a  penal  colony  with  confinement  is  merely  send- 
ing to  a  remote  jail.  Condemnation  to  the  mines,  with  en- 
forced labor  and  no  chance  of  escape,  is  the  hardest  impris- 
onment. Prohibitions  issued  to  nobles  and  courtiers  against 
coming  to  court,  or  requiring  them  to  keep  at  home,  were 
trifling  penalties  which  influenced  but  a  few.  In  short,  so  far 
as  exile  differs  from  hard  labor  with  a  degree  of  confinement, 
it  is  of  little  use  in  the  present  state  of  the  world. 

$  119- 
A  word  or  two  touching  some  special   cases  of  crime  will 
close  what  we  have  to  say  on  that  subject.     One 

Epidemic  crimes.     .  ,  .     , 

is  what  may  be  called  epidemic  if  not  contagious 
crimes.  Sometimes  it  is  found  that  crimes  increase  fearfully, 
even  among  nations  of  a  very  settled  character.  In  the  year 
570,  of  Rome  (=184  B.  C),  according  to  Livy  (whose 
authority  in  this  place,  however,  Valerius  Antias,  is  none  of 
the  best),  trials  for  poisoning  occupied  one  of  the  praetors  for 
four  months,  chiefly  in  the  towns  and  smaller  places  outside 
of  the  city,  and  two  thousand  persons  were  found  guilty. 
(Liv.,  xxxix.,  41.)  Two  years  afterwards  there  was  a  new 
fright  about  this  crime.  A  number  of  leading  men  died  sud- 
denly, of  whom  one  was  a  consul  ;  his  wife  was  convicted  of 
procuring  his  death  ;  and  a  praetor  who  had  charge  of  the 
trials  in  the  country  wrote  that  he  had  already  condemned 
three  thousand,  and  that  the  number  of  suspected  persons 
grew  through  informations.  Special  trials  for  the  same  crime 
continued  into  another  year.  (Liv.,  xl.,  37,  43,  44.)  Many 
years  before  these  events  (in  332=422  B.  C.)  the  same  state 
of  things  had  existed,  at  which  time  ladies  of  distinguished 
families  were  the  authors  of  the  mischief,  and  twenty  died  in 
consequence  of  being  forced  to  drink  potions  which  they  had 
prepared.  More  than  one  hundred  and  seventy  others  were 
convicted  of  aiding  in  the  crime.  (Liv.,  viii.,  18.)  No  trials, 
according  to  Livy,  for  poisoning,  had  been  known  at  Rome 
before,  and  there  was  something  so  demonic  about  this  that 


378  POLITICAL   SCIENCE. 

a  piacular  rite  was  resorted  to.  It  was  looked  upon  more 
like  derangement  of  mind,  adds  the  same  author,  than  like 
wickedness. 

Similar  examples  of  contagious  crimes,  and  still  more  of  the 
contagious  suspicion  of  it,  are  furnished  by  the  history  of  dif- 
ferent states.  We  need  only  refer  to  the  mutilation  of  the 
Hermae  at  Athens,  to  the  excitement  at  Rome  in  regard  to 
the  Bacchanalia,  to  Titus  Oates'  plot,  and  the  witch  delusion 
at  Salem.  If  such  fits  of  terror  and  suspicion  led  to  no  judi- 
cial proceedings,  they  would  pass  by  at  once,  but  there  seems 
to  be  an  unnatural  temptation,  extending  even  to  children, 
to  bear  false  witness  on  such  occasions,  dictated  in  part,  at 
least,  by  the  great  importance  attached  to  those  who  seem  to 
know  more  than  others.  There  is,  however,  no  doubt  also 
that  a  form  of  crime  multiplies  itself  by  its  power  over  the 
imagination,  so  that  stories  of  crime  beget  crime.  Great 
care  is  needed  at  such  crises  lest  courts  themselves  and  pub- 
licity add  to  the  evil  which  all  wish  to  cure. 

§  120. 

While   no  government  can   afford  to   overlook  crimes  of 
which  the  state  itself  is  the  object,  the  general 

Political  crimes.  .  _  . 

policy  of  governments  attacked  by  such  crimes 
only  increases  the  bitterness  of  the  feeling  out  of  which  the 
crimes  arise.  The  agents  of  justice  take  a  part  against  the 
criminal  ;  the  whole  power  of  the  administration  is  on  their 
side  ;  the  ordinary  rights  of  accused  men,  even  the  use  of 
counsel,  have  been  denied  to  political  offenders  as  if  they 
were  of  all  persons  the  most  unprincipled  ;  and  unusual 
courts  have  been  established  for  their  trial.  While  govern- 
ments are  thus  their  natural  enemies,  their  good  characters, 
their  disinterested  views  in  the  schemes  in  which  they  have 
had  a  part,  their  high  position  and  birth,  it  may  be,  their 
horoic  courage  in  facing  death,  cause  them  to  be  regarded  by 
the  people  as  martyrs  rather  than  as  traitors  ;  so  that  nothing 
is  gained  for  public  security  or  peace  by  subjecting  them  to 
extreme  punishment. 


THE   PUNITIVE   POWER   OF   THE   STATE.  379 

In  no  part  of  criminal  law  have  even  Christian  states  been 
so  harsh  or  gained  so  little  by  the  use  of  penalty,  as  in  the 
treatment  of  political  crimes.  It  is  plain  that  the  severe 
treatment  of  a  so-called  patriot  at  the  present  age  in  the  way 
of  correction  or  of  example  does  little  if  any  good  ;  and  cer- 
tainly the  moral  criminality  of  such  men  is  often  very  small. 
True  policy  seems  to  require  that  they  should  be  used  gently, 
should  be  treated  as  tetes  cxaltecs,  and  often  should  have  a 
door  left  open  to  them  for  reconciliation  to  the  government. 
Especially  ought  their  followers,  those  who  join  them  out  of 
friendship  or  the  spirit  of  kindred,  or  from  the  affection  pro- 
duced by  long  service,  to  be  spared,  as  having  been  influ- 
enced by  the  better  feelings  of  human  nature. 

§  121. 

It  is  worth  our  while  to  consider  the  proper  weight  that 
Public  opinion  and  public  opinion  ought  to  have  in   adjusting  the 
penalty.  scale  and  determining  the  amount  of  punishment. 

It  is  in  part  in  order  to  instruct  such  opinion  that  penalties 
are  appointed.  They  show  the  feeling  entertained  by  the 
state  in  regard  to  offences  against  private  and  public  rights. 
But  if  the  opinion  of  society  decides  that  the  so-called  crime 
was  a  virtue,  no  penalty  can  change  this,  and  loyalty  is  weak- 
ened by  the  execution  of  the  laws.  In  general,  however, 
there  will  be  some  correspondence  between  law  and  public 
feeling  ;  or,  in  other  words,  law  will  represent  the  average 
feeling  outside  of  criminal  classes,  in  regard  to  the  penalties 
due  to  transgression  ;  it  will  be  harsh  and  severe  when  an  age 
is  half  civilized,  and  the  nerves  of  men  are  less  sensitive  ;  it  will 
change  with  humanity  and  with  greater  sensibility  to  bodily 
pain  or  disgrace.  But  opinion  may  change  some  time  before 
law  changes,  either  under  influences  from  a  real  humanity  or 
tlv  tse  from  a  false  humanity,  which  thinks  little  of  righteousness 
and  much  of  suffering.  When  opinion  has  changed,  it  is  hard 
to  inflict  the  same  penal  sufferings  as  before.  Juries  will  be 
swayed  by  the  dislike  of  capital  punishment  ;  benevolent 
people  will  make  prisons  very  comfortable  places,  and  will 


380  POLITICAL   SCIEISTCE. 

lead  criminals  to  believe  that  they  are  peculiarly  unfortunate, 
and  that  to  injure  one's  neighbor  or  the  state  is  potentially  in 
all  men.  How  ought  the  state  to  act  in  regard  to  legal  pen- 
alties, when  such  alterations  are  perceived  ?  Some  yielding 
is  necessary,  for  the  objects  of  punishment  are  partly  relative  ; 
but  is  it  not  also  the  legislator's  duty  to  correct  public  opinion 
and  give  it  a  new  course  ?  The  general  tendency  of  the 
changes  thus  far  has  been  good  ;  and  it  is  shown  by  trial  that 
the  humanity  of  modern  times,  by  diminishing  the  punish- 
ment of  crimes  against  property,  of  political  crimes  and  some 
others,  works  reformation  in  prisoners,  and  probably  tempts 
few  into  crime. 

§  122. 
As  laws  are  general  and  offences  are  described  by  general 
terms,  and  arranged  in  classes,  it  must  happen 

Pardons.  ...  ..... 

that  criminal  acts  outwardly  similar  may  run 
through  several  degrees  of  evil.  It  may  happen,  also,  that 
the  evidence  in  the  opinion  of  the  judge  was  not  as  clear  as 
it  was  in  that  of  the  jury,  or  that  some  feeling  of  the  com- 
munity had  weight  in  the  verdict  of  the  latter,  or  that  the 
offence  was  technical  rather  than  real.  If  there  is  no  reason 
for  revising  the  verdict  by  a  new  trial,  there  may  be  a  fair 
claim  to  some  mitigation  in  the  time  or  other  circumstances 
of  the  penalty  ;  or  there  may  be  some  new  evidence  which, 
after  the  term  of  punishment  is  begun,  shows  it  to  be  in- 
equitable. For  these  and  other  reasons  pardon  or  diminu- 
tion of  penalty  is  sometimes  necessary  ;  but  the  practical 
abuses  of  the  pardoning  power  have  been  such  as  to  make  it 
evident  that,  as  at  present  conducted  in  most  communities, 
this  evil  is  as  bad  as  the  one  it  seeks  to  cure.  In  general,  it 
may  be  said,  1.  That  some  judicial  report  giving  the  reasons 
for  its  exercise  ought  to  be  necessary  before  any  pardon  be 
granted  ;  2.  That  no  political  chief  ought  to  have  the  power 
lodged  in  his  hands  ;  3.  That  no  one  man  ought  to  possess 
it,  for  he  will  be  almost  sure  to  swerve  towards  indiscriminate 
pardon ;  4.  That  not  even  the  slightest  consideration  of  the 
disgrace  to  the  family  of  the  criminal  and  of  his  position  in  so- 


THE   PUNITIVE   POWER   OF   THE   STATE.  38 1 

cicty  ought  to  be  allowed.  On  the  contrary,  it  throws  lustre 
on  the  law,  when  it  is  seen  to  be  equal  toward  the  highest  and 
the  lowest,  and  even  more  severe  towards  those  who  break 
the  law  against  the  greatest  light.  5.  Whether  reformation 
and  general  good  character  during  confinement  ought  to  be 
rewarded  with  pardon,  will  depend  in  part  on  the  evidence  of 
its  genuineness.  If  a  criminal  is  really  reformed,  so  that,  as 
he  goes  forth,  he  preaches  by  his  conduct  the  law  that  once 
he  destroyed,  he  is  one  of  the  best  helps  of  society  against 
transgression,  but  if  the  hope  of  reform  acts  in  such  a  way  as 
to  whiten  his  exterior  only,  there  is  small  advantage  to  society 
in  letting  him  out.  6.  Special  cases  for  pardon,  such  as  loss 
of  health  brought  on  by  prison  confinement,  must  be  judged 
of,  each  for  itself.  Imprisonment  was  not  meant  to  break 
down  health  any  more  than  to  destroy  reason,  to  which 
solitary  confinement  gives  rise. 

§  123. 
We  have  seen  that  private  claims  may  with  a  kind  of  jus- 
Limitation  of  pro- tice  expire,   and  new    relations  of  justice  arise 

sections  for  crime.     wjthin    a    certain    period-        Ought     it    to     be    the 

same  in  the  case  of  crimes  ?  There  are  more  reasons  for  ap- 
plying the  same  principle  in  criminal  law  and  fewer  against 
it  than  in  civil.  Some  considerations  to  be  urged  here  are 
that  absolute  justice  is  unattainable,  and  the  purposes  of  the 
state  are  tolerably  well  accomplished  though  many  crimes 
escape  detection.  If  now  a  discovery  should  be  made  of  the 
commission  of  an  ordinary  offence  after  some  time  had 
elapsed,  the  impression  made  by  the  connection  of  the  crime 
and  the  penalty  would  be  seriously  impaired.  If  the  wrong- 
doer had  reformed,  society  would  sympathize  with  him  and 
demand  for  him  mild  treatment  ;  if  he  had  not,  he  could 
hardly  have  continued  some  years  without  committing  fresh 
evil  for  which  he  would  be  brought  to  justice. 

In  the  case  of  atrocious  crimes,  however,  the  limitation 
ought  to  be  long,  and  perhaps  the  fear  of  being  brought  to 
light  might  be  in  itself  a  penalty  of  high  degree. 


CHAPTER  IX. 

SOME   POINTS   OF   POLITICAL   ETHICS    EXAMINED. 

§  124. 
POLITICAL  ethics  is  that    branch  of  moral  science  which 
Only  a  few  points  treats  of  duties  and  obligations  growing  out  of 

of  ethics  here  treated  . 

of.  the  relations  of  men  in  the  state.      If  we  draw  a 

line  between  duties  and  obligations,  between  the  moral  and 
the  jural,  the  latter,  as  being  a  subject-matter  of  law  and 
polity,  may  be  passed  by  in  a  treatise  on  morals  ;  and  there 
are  points  touching  the  duties  of  the  citizen  which  do  not  find 
their  most  appropriate  place  in  the  narrower  or  jural  depart- 
ment (§  7,  1).  Thus  the  various  virtues  which  qualify  a  man 
to  be  a  good  member  of  a  political  community, — inward  vir 
tues,  such  as  moderation,  sympathy,  courage,  patriotism,  and 
the  general  virtue  of  outward  obedience  to  the  law, — will  find 
a  place,  in  a  treatise  on  moral  science  taken  as  a  whole,  by 
the  side  of  the  social,  the  Christian,  and  those  that  end 
with  the  perfection  of  the  individual  being.  But  besides  such 
as  these,  there  are  special  cases,  questions  of  limits  or  of  cas- 
uistry, where  the  general  duty  or  obligation  of  loyalty  may 
come  into  conflict  with  others  that  seem  to  be  higher  and 
more  imperative.  So,  also,  there  are  duties  of  the  state  and 
of  its  officers,  and  similar  questions  of  casuistry  touching 
what  they  ought  to  do.  In  general  it  may  be  said  of  these 
last-mentioned  duties  that  wherever  the  relations  coincide 
with  those  of  individuals,  there  is  a  duty  incumbent  on  some 
one  to  fulfil  what  the  state  owes  to  other  states  or  to  private 
persons,  which  corresponds  with  the  duties  of  private  persons. 
Thus  the  state  must  observe  contracts,  must  keep  to  the 
truth,  must  not  commit  any  kind  of  injury  on  private  property 
or  person,  and  the  like.      In  such  wrong  actions  some  officer 


SOME   POINTS   OF   POLITICAL   ETHICS   EXAMINED.       383 

must  take  an  active  part.  He  is  bound  to  refuse  to  obey  the 
command  of  a  higher  power  if  it  is  clearly  against  the  rules 
of  morality.  Otherwise,  all  manner  of  wrong  can  be  excused 
by  the  command  issuing  from  a  superior.  But  we  intend  to 
leave  out  of  view  nearly  the  whole  of  this  department,  except 
the  special  cases  which  may  arise  in  the  minds  of  private  citi- 
zens or  of  public  officers  who  are  desirous  to  discharge  their 
political  duties.* 

$  125. 
First  we  will  enquire  whether  the  individual  can  by  right 
Can  the  citizen's  or  sever  his  connection  with  his  country.  There 
wi!i!The\?a'.'cTenn'>-  is  no  doubt  that  a  relation  with  a  state  once 
formed,  in  whatever  way,  by  birth  or  by  natu- 
ralization, cannot  cease  without  the  state's  consent  while  the 
person  in  question  lives  within  its  territory.  If  it  could,  a 
state  might  be  reduced  to  atoms  without  the  right  to  save 
itself  from  ruin.  Could  we  suppose  so  absurd  a  thing  as  that 
all  the  members  of  a  body  politic  wished  to  put  an  end  to 
state  life  and  fall  into  chaos,  or  the  state  of  nature,  so  called, 
except  the  magistrates,  and  they  could,  by  the  help  of  force 
from  abroad,  prevent  such  a  destruction,  it  would  be  right  to 
do  so,  as  it  would  be  right  to  keep  a  man  from  committing 
suicide.  The  real  good  of  all  without  and  all  within  the  state 
would  demand  such  an  interposition.  But  what  is  the  tie  of 
the  single  person  ?  Is  his  allegiance  indefeasible  ?  Can  he  re- 
nounce his  country  in  such  sort,  that  another  may  receive  him 
into  the  same  relation  ?  Has  his  country  such  claims  on  him 
that  its  consent  must  be  had  before  he  can  terminate  his  obli- 
gations to  it  by  leaving  its  territory  with  the  intention  of 
never  returning  ? 

It  has  been  in  matter  of  fact  extensively  claimed  that  the 

*  A  treatise  on  political  ethics,  including  both  the  doctrine  of  the 
state  and  political  ethics,  properly  so  called,  in  which  the  political 
virtues  and  many  political  duties  are  considered  at  some  length,  was 
published  by  Dr.  Francis  Lieber,  in  1838,  and  a  second  edition  ap- 
peared in  1875,  after  his  death,  edited  by  the  author  of  the  present 
work. 


384  POLITICAL   SCIENCE. 

private  person  has  no  right  to  leave  the  soil  of  his  country 
without  its  consent ;  allegiance  has  been  pronounced  inde- 
feasible, and  no  higher  obligation  has  been  generally  admitted 
towards  aliens  than  to  protect  their  persons  and  industry  if 
they  were  allowed  to  settle  in  a  country,  which  permission 
itself  depended  on  the  will  of  the  territorial  sovereign.  Nor 
has  the  jus  cmigrandi  been  conceded  on  account  of  any  sup- 
posed right  of  the  private  person  to  demand  it  ;  and  higher 
privileges  than  mere  protection  to  aliens  have  been  given  by 
treaty  on  consideration  of  mutual  benefit.  Even  with  regard 
to  colonies,  consisting  of  native-born  subjects  and  their  de- 
scendants, the  tendency  has  been  to  withhold  from  them  some 
of  the  higher  political  rights,  to  consider  them  as  dependen- 
cies, not  as  integral  parts  of  the  state.  The  most  modern 
times,  however,  have  witnessed  great  changes  in  these  re- 
spects. Colonies  are  made  self-governing,  under  the  mother- 
state  ;  and  private  persons  can  become  naturalized  citizens, 
and  can  again  renounce  their  nationality  and  resume  the  old 
one,  according  to  treaties  between  several  of  the  principal 
nations  of  the  world.  Even  English  law,  which  long  held  to 
indefeasible  allegiance,  has  changed  its  principle  in  this  re- 
spect. 

Looking,  however,  at  the  right  in  the  case,  we  find  that 
there  are  conflicting  reasons  for  the  treatment  of  emigrants 
which  may  give  rise  to  conflicting  laws.  1.  It  cannot  be  said 
that  the  obligation  to  remain  in  a  country  is  for  the  private 
person  absolute ;  nor  that  he  is  obliged  to  return  under  all 
circumstances  when  so  commanded.  If  a  country  is  at  war 
and  needs  the  aid  of  all  its  men,  to  leave  it  at  such  a  time  is 
morally  base  and  deserves  also  to  be  ranked  among  crimes. 
Such  was  the  offence  of  Leocrates  after  the  battle  of  Chaero- 
nea,  according  to  the  oration  of  the  fervid  Lycurgus.  Or 
again,  if  a  private  man  should  leave  his  country  in  order  to 
avoid  impending  duties  that  were  onerous,  it  would  be  no  in- 
justice to  hold  him  to  them,  if  he  should  again  be  found  with- 
in the  territory.  But  in  ordinary  times  it  would  be  tyranny 
and  injustice  to  shut  men  up  within  the  boundary-lines  of  a 


SOME   POINTS   OF   POLITICAL   ETHICS    EXAMINED.       385 

territory.  The  nations  of  the  world  are  destined  to  flourish 
by  intercourse,  and  private  persons  spread  the  knowledge, 
arts  and  products  of  one  land  over  the  rest  of  the  world.  It 
is  only  fear,  or  the  selfishness  of  a  protective  system  that  can 
oppose  this.  There  seems,  then,  to  be  something  like  a  right 
for  the  private  person  to  choose  his  place  of  sojourn,  since  it  is 
alike  for  the  development  of  his  own  industry  and  for  the  good 
of  mankind.  2.  It  cannot  be  said,  however,  that  aliens  have  an 
absolute  right  of  settling  in  foreign  lands.  The  population 
may  be  overcrowded  already.  To  allow  great  numbers  to  do 
this  might  disturb  the  political  system.  If  it  be  allowed, 
there  is  no  absolute  right  on  the  part  of  the  alien  to  demand 
citizenship  or  even  ownership  of  landed  property,  if  otherwise 
protected.  But  if  he  remain  and  have  a  family  in  the  place 
of  his  sojourn,  his  children  sustain  a  different  relation  to  the 
new  country  from  his  own.  They  are  assimilated  to  its  insti- 
tutions and  social  usages  by  dwelling  there  from  youth  up- 
ward. Hence  there  seems  to  be  a  rightful  claim  on  their  part 
to  be  put,  if  they  desire  it,  on  a  level  with  other  persons  born 
of  native  parents. 

To  this  we  may  add  that  the  tie  to  country  is  a  complex 
thing,  in  part  arising  from  the  political  system  itself,  in  part 
from  relations  of  kindred  and  other  connections.  If  the  po- 
litical institutions  are  in  the  view  of  a  person  so  tyrannical 
that  no  true  freedom  can  be  enjoyed  under  them,  he  is  to 
consider  what  good  is  to  be  gained  for  others  by  his  remain- 
ing there  ;  and  if  the  good  arising  from  coming  under  better 
political  forms  preponderates,  he  may  regard  himself  as  free 
to  remove.  The  grown-up  child  leaves  the  family  in  quest 
of  a  settlement  for  himself;  what  right  has  a  state  to  bind 
men  to  their  birthplace  any  more  than  a  father  ?  Nor  can  it 
be  shown  that,  if  the  state  allows  absence,  it  has  any  right  to 
call  its  native-born  citizens  back,  after  they  have  formed 
other  ties.  On  the  whole  then  the  citizen  or  subject,  except 
at  particular  crises,  ought  to  be  left  free  to  choose  a  new 
dwelling-place;  but  any  other  country  which  he  may  wish  to 
make  his  home  may  have  sufficient  reasons  for  denying  him 
25 


3S6  POLITICAL   SCIENCE. 

the  privilege,  which  there  he  certainly  cannot  claim  as  a 
right. 

§  126. 

For  the  citizen  within  the  state  a  large  part  of  his  outward 
,   ..    duties  is   comprised   in   loyalty  or  obedience  to 

Loyalty  or  obeai-  L  J  J 

ence  to  law.  iaw>  because  the  law  covers  all  political  relations 

with  its  definitions  and  its  penalties.  Loyalty  signifies  espe- 
cially fidelity  to  a  sovereign,  but  in  its  original  form  was  noth- 
ing but  legality,  and  assumed  the  narrower  meaning  because 
the  personal  tie  to  the  superior  included  most  of  the  obedi- 
ence demanded  from  the  upper  members  of  the  feudal  sys- 
tem. Such  personal  attachments  which  had  their  noble 
side,  society  everywhere  is  outgrowing  ;  and  among  us  they 
are  impossible  in  the  political  sphere,  except  in  the  miserable 
caricature  presented  by  the  relation  of  office-holders  to  their 
chief  on  whom  they  depend.  We  are  brought  down  to  naked 
abstract  law,  to  the  obligation  to  obedience,  to  the  idea  of 
a  good  citizen,  to  the  sense  of  the  state's  importance,  and  the 
sanctions  of  religious  duty.  But  a  safeguard  of  obedience  to 
law  comes  from  our  having  pledged  ourselves  to  it  by  the 
citizen's  or  freeman's  oath,  while  its  venerableness  is  dimin- 
ished by  the  feeling  that  the  constitution  may  be  essentially 
altered  by  the  act  of  the  people. 

The  obligation  to  obey  does  not  depend  on  the  individual's 
own  judgment  of  the  utility  ol  the  law;  but,  if  it  be  within 
the  rules  of  morals  and  the  power  of  the  law-making  body, 
he  must  obey  any  law  however  objectionable,  nor  permit 
himself  to  be  influenced  by  the  shallow  pretext  for  disobedi- 
ence that  it  was  passed  by  an  opposite  party,  or  by  men 
holding  false  commercial  principles.  He  will  not  smuggle 
goods  into  the  country  where  he  lives  although  a  full  be- 
liever in  free  trade,  nor  disobey  vexatious  police  regulations 
when  he  is  sure  of  impunity,  nor  bribe  custom-house  officers, 
nor  encourage  or  make  use  of  any  other  person  in  open  or 
secret  illegality.  Furthermore,  as  every  law  is  attended  by 
some  penalty,  and  as  the  breach  of  it,  if  it  relate  to  private 


SOME   POINTS   OF   POLITICAL   ETHICS   EXAMINED.       3S7 

i-ights  calls  for  reparation,  his  obligation  he  will  feci  to  ex- 
tend to  the  endurance  of  the  penalty  and  the  endeavor  to 
make  reparation.  So  that  the  loyal  citizen  will  stay  in  prison, 
as  long  as  his  sentence  requires  ; — following  in  this  the  no- 
blest man  among  the  Greeks,  when  he  was  condemned  on 
false  charges  to  death  and  by  the  help  of  his  friends  could 
have  escaped. 

The  limits  of  the  citizen  as  to  obedience  we  will  consider 
presently.  At  present  we  may  ask  whether  the  stranger 
passing  through  a  land — for  about  the  domiciled  stranger 
there  can  be  no  question — is  under  equal  obligation  to  obedi- 
ence with  the  citizen.  The  reasons  in  his  case  are  far  weaker, 
as  his  knowledge  is  less  complete.  But  we  may  say  with 
confidence  that  at  least  everything  which  is  deducible  from 
the  principles  of  justice  or  necessary  for  their  maintenance, 
all  laws  universally  admitted  among  just  communities,  all 
regulations  necessary  for  the  public  peace,  oughtto  be  obeyed 
by  sojourners  and  strangers.  This,  however,  cannot  apply  to 
the  absurd  usages  of  half-civilized  or  barbarous  lands,  or  to 
degrading  compliances  with  slavish  forms  of  respect.  A 
man  will  thus  be  loyal  to  justice  everywhere,  as  he  will  be  to 
truth,  if  loyal  in  spirit. 

Obedience  to  the  law  implies  obedience  to  the  magistrate 
obedience  to  the  m  executing  the  laws,  and  all  such  marks  of 
respect  as  just  law  may  happen  to  require.  But 
the  magistrate,  apart  from  his  relation  to  the  law,  is  entitled 
to  no  obedience,  and  when,  presuming  on  his  authority,  he 
gives  out  an  unlawful  command,  it  is  he  who  commits  the 
act  of  disobedience  ;  and  refusal  to  obey  is  loyalty.  It  will 
be  claimed,  of  course,  that  the  legality  of  the  act  has  been 
decided  by  persons  skilled  in  the  law,  and  that  the  officer  of 
administration  is  presumably  right  in  his  requirements.  But 
in  all  governments  where  there  is  freedom  of  the  individual, 
there  is  or  ought  to  be  some  tribunal  which  can  decide  how 
far  the  authority  of  the  officer  extends,  and  he  ought  to  be 
liable  to  the  private  citizen  for  unlawfully  disturbing  him  in 
his  free   movements.      In  constitutional  governments  of  the 


388  POLITICAL   SCIENCE. 

present  day,  the  head  of  the  state  executes  the  duties  lying 
on  him  chiefly  through  others,  and  they  are  responsible  ; 
this  responsibility  of  ministers,  if  it  be  really  such;  that  is, 
if  it  be  understood  that  no  unconstitutional  orders  from  the 
principal  authority  can  be  obeyed,  and,  if  issued,  cannot  be 
a  plea  against  breach  of  the  law,  will  to  a  great  extent  be  an 
effectual  protection  of  the  private  person  against  the  unlawful 
caprice  of  the  magistrate. 

§  127. 
The  inquiry  may  be  made   whether  a  citizen  who  has  the 
right   of  voting    can   be  obliged  to    vote,    and 

Obligation  to  vote.  •  _  „  1  1   1  •  1 

whether  a  man  set  up  tor  orace  can  be  obliged 
to  serve;  that  is,  whether  either  to  vote  or  to  hold  office  may 
be  compulsory,  or  the  failure  to  do  either  ought  to  bring  with 
it  some  penalty.  If  these  political  rights  stood  on  the  same 
ground  with  personal  or  civil  rights,  the  answer  would  be  in 
the  negative  without  hesitation.  No  man  can  be  compelled 
to  acquire  property  or  to  make  a  contract ;  and  the  ancient 
states  that  laid  a  tax  on  bachelors  do  not  represent  our  sense 
of  personal  rights  in  this  particular.  But  as  voting  and 
holding  office  are  not  rights  necessary  to  personal  liberty, 
nor  natural  in  any  sense,  the  analogy  fails.  On  the  other 
hand,  as  the  right  of  voting  is  greatly  prized  by  those  who 
cast  the  least  intelligent  votes,  so  the  reverse  is  equally  true. 
There  are  multitudes  in  countries  where  suffrage  is  unre- 
stricted, whose  property  is  injured  by  misgovernment  and 
who  are  continually  complaining  of  the  state  of  things  around 
them,  who  make  no  efforts  by  use  of  their  right  of  suffrage 
to  improve  it.  Either  in  despair  or  in  selfish  disregard  of 
the  public  welfare  they  stand  aloof  from  politics,  although 
a  political  duty  might  not  cost  them  half  an  hour's  time  once 
or  twice  a  year.  On  the  theory  that  voting  is  a  privilege,  it 
involves  for  the  most  part  a  duty  ;  to  enforce  it  by  penalty 
would  not  comport  with  the  nature  of  a  privilege  ;  it  would 
be  more  reasonable  to  make  the  continued  neglect  of  exer- 
cising it  a  reason  for  its  forfeiture.      As  for  office,  which  may 


SOME   POINTS   OF   POLITICAL   ETHICS   EXAMINED.       389 

require  great  sacrifices  of  private  business,  the  case  is  differ- 
ent. The  call  may  be  declined  after  nomination  ;  and  much 
more  may  appointments  by  the  executive  of  a  country  be 
so  declined,  since  acceptance  might  be  construed  into  approval 
of  measures  which  the  person  concerned  condemns  or  might 
require  action  with  those  in  whom  he  has  no  confidence.  . 
The  question  becomes  one,  then,  of  simple  duty,  and  is  to  be 
solved,  not  by  the  mere  preferences  of  party  or  personal 
feeling,  but  on  the  highest  principle  of  regard  for  the  general 
good. 

§  128. 

In  all  free  countries  there  will  be  public  parties  divided 
Parties  and  reia-  from  one  another  by  various  lines  ;  some  local 

tii 'us  of  individuals  ....  .  r    . 

to  parties.  and  territorial,  others  growing  out  of  industrial 

interests  ;  others  still  dependent  on  changes  or  on  interpreta- 
tions of  the  constitution,  or  on  questions  of  foreign  or  domes- 
tic policy ;  and  these  interests  will  variously  combine  or 
oppose  one  another,  so  that  there  will  be  complications  of 
party-policy,  open  questions  and  close  questions,  together 
with  interests  and  aspirations  of  rival  candidates  for  office, 
bringing  the  whole  matter  of  politics  to  a  focal  point.  It  will 
often  happen  that  important  questions  will  be  set  aside  or 
postponed,  because,  if  too  many  points  are  made  there  can 
be  little  hope  of  a  successful  combination  of  interests.  To  a 
considerable  extent,  then,  the  arrangements  of  parties,  so  far 
as  they  relate  to  selections  of  candidates  and  even  to  meas- 
ures, are  subjects  of  compromise  ;  often  of  mean  compromise, 
and  nothing  is  more  common  in  this  country  than  to  announce 
principles,  in  what  are  called  "  platforms,"  by  which  there  is 
no  certainty  that  the  party  will  abide.  The  arrangements  for 
candidates  are  no  better.  They  are  brought  forward,  not  in 
the  open,  manly  way  of  self-nomination,  but  by  a  committee 
for  whom  no  one  feels  himself  responsible.  They  are  chosen, 
not  for  merit,  but  because  they  are  most  popular,  or  for  some 
other  unworthy  reason. 

Such,  in  brief,  is  the  way  in  which  parties  themselves  act. 


390  POLITICAL   SCIENCE. 

Generally  there  is  some  question  or  course  of  policy  on  which 
honest  men  may  differ,  and  then  there  is  a  real  reason  for 
divisions  of  opinion  which  are  somewhat  permanent.  The 
question  now  arises,  What  are  the  relations  of  the  private  citi- 
zen toward  such  somewhat  vague  unions  which  are  longer 
true  to  their  names  than  to  their  original  principles,  and 
which,  if  wielding  the  powers  of  government  for  a  length  of 
time,  almost  inevitably  gather  to  themselves  hangers-on  that 
are  anything  but  a  credit  ? 

The  questions  here  to  be  considered  are  those  of  duty  and 
wisdom  in  the  long  run,  questions,  some  of  which  require 
much  thought  and  calmness  for  their  solution,  and  demand 
an  amount  of  intelligence  which  certainly  large  numbers,  who 
are  brought  to  the  polls  by  unrestricted  suffrage,  do  not  pos- 
sess. Some  of  the  ethical  rules  for  the  conscience  of  individ- 
uals, are  those  which  follow  : 

I.  No  person  ought  to  sustain  a  party  or  a  representative 
of  a  party  when  either  of  them,  as  he  has  reason  to  believe, 
will  advocate  any  positively  wrong  measure.  Let  the  meas- 
ure be  within  the  powers  of  the  legislature,  such  as  declaring 
war  on  grounds  which  the  person  in  question  believes  to  be 
altogether  unjust,  or  let  it  involve  a  breach  of  the  constitution, 
or  let  it  be  neither,  but  simply  something  calculated  to  cor- 
rupt the  people — a  demagogical  bribe  for  votes  ;  in  no  case 
can  he  give  his  voice  for  the  election  of  a  representative  who 
will,  as  he  supposes,  favor  such  an  act  of  legislation.  The 
check, which  the  representative  feels, is  the  loss  of  confidence 
of  his  constituents.  If  a  party,  on  account  of  favoring  wrong 
or  unconstitutional  measures,  is  not  in  danger  of  suffering  a 
loss  of  support — if  the  representative  or  his  constituents  can 
be  kept  with  it  through  thick  and  thin,  one  great  fear  will  be 
removed  from  its  leaders,  and  they  will  be  far  less  scrupulous 
and  more  audacious.  The  restraint  of  public  opinion  on  the 
measures  of  public  men  is  of  no  value,  if  that  public  opinion 
does  not  express  itself  in  some  way  that  can  be  felt.  Will  it 
be  said  that  this  opposes  a  rule  already  given,  that  the  repre- 
sentative ought  to  disregard  the  judgment  of  his  immediate 


SOME   POINTS   OF   POLITICAL   ETHICS    EXAMINED.       391 

constituency  and  enquire  what  is  best  for  the  whole  country  ? 
But  the  two  rules  are  so  far  from  being  inconsistent,  that  an 
honest  representative  would  feel  most  keenly  the  suspicions 
that  a  man  whom  he  respected  entertained  in  regard  to  his 
motives,  still  more  such  a  man's  open  condemnation  of  his 
official  conduct ;  while  he  would  feel  assured  that  really  honest 
departures  from  the  views  of  his  constituency  would  approve 
themselves  to  just  such  a  class  of  persons.  Perhaps  there  is 
nothing  more  wanted,  at  least  in  our  politics,  than  the  marked 
rebukes  of  legislators  by  their  party  friends,  whose  esteem  they 
value. 

2.  Parties  ought  to  be  kept  up  to  their  promises  and 
pledges  by  the  fear  of  disaffecting  independent  men.  If  it 
were  well  understood  that  such  men  watched  the  movements 
of  parties,  and  withdrew  confidence  from  them  for  defection 
from  their  own  principles — defection  owing  to  fear  or  to  the 
want,  at  first,  of  an  honest  purpose  to  fulfil  promises — the 
leaders  of  parties  in  public  assemblies  or  in  government  offi- 
ces would  not  venture,  as  readily  as  they  do  now,  to  commit 
acts  inconsistent  with  their  professions.  The  strength  of  evil 
counsels,  that  which  most  corrupts  parties  at  present,  consists 
in  the  ability  of  a  party  in  public  assemblies  to  stand  together  ; 
but  they  would  not  stand  together  if  they  were  more  sure  of 
being  met  by  reprehension  at  home. 

3.  In  voting  for  representatives  and  public  officers,  the 
character  of  the  candidate  or  nominee  ought  to  be  regarded 
as  of  great  importance.  If  it  be  made  a  point  of  political 
duty  or  honor  to  stand  by  the  nominee,  whatever  may  have 
been  his  past  conduct ;  the  control  of  parties  will  fall  into  the 
hands  of  the  worst  but  most  available  members,  because  the 
worst  side  of  a  party  has  no  objection  to  be  so  represented 
by  men  of  doubtful  character,  and  is  generally  the  most  busy  in 
political  intrigues,  while  the  better  side  is  bound  by  the  feel- 
ing of  duty  and  is  quiet.  On  the  other  hand,  if  the  principle 
were  admitted  that  no  one  ought  to  vote  for  a  candidate  who 
was  not  a  man  of  thoroughly  good  character,  or,  to  make 
the  statement  still  stronger,  was  not  the  best  person  for  the 


392  POLITICAL   SCIENCE. 

place  to  be  found,  there  would  be  no  hope  of  union  among 
the  most  patriotic  and  virtuous  persons  belonging  to  a  party  ; 
each  would  follow  his  own  subjective  opinion  without  com- 
promise ;  and  those  whom  it  is  every  way  undesirable  to  put 
at  the  heads  of  parties  would  assume  their  control.  We 
have,  then,  here  two  extremes  to  be  avoided,  and  they  can 
be  avoided,  unless  a  rigid  principle  of  political  ethics  demands 
that  every  voter  ought  to  cast  his  suffrage  for  the  best  possi- 
ble man,  whether  others  will  join  him  in  so  doing  or  not. 
But  surely  no  man  is  bound  to  act  invariably  on. this  last- 
mentioned  principle.  In  acting  with  other  men  having  con- 
victions different  from  mine,  who  have  a  common  object  to 
carry  with  me,  there  must  be  of  necessity  sometimes  a  yield- 
ing of  judgment  and  a  compromise.  When  it  is  decided,  by 
whatever  process — whether  that  be  the  miserable  expedient 
of  caucus  or  some  other — that  a  man  will  receive  the  votes 
of  the  party  to  which  I  belong,  I  must  decide  from  a  con- 
sideration of  his  abilities  and  character  on  the  one  hand,  and 
from  the  risk  of  failure  on  the  other,  if  I  withdraw  my  vote, 
whether  in  the  particular  case  a  rebuke  of  the  party  for  se- 
lecting a  bad  man  is  on  the  whole  desirable.  We  do,  and 
always  will  in  some  cases,  choose  untrustworthy  persons  for 
special  trusts.  Thus  let  a  company  of  travellers  be  in  danger 
of  attack  from  robbers,  and  one  among  them,  the  worst  of 
all  in  character,  be  alone  skilled  in  conducting  the  defence  of 
the  party  ;  would  any  one  refuse  to  give  him  the  lead  on  ac- 
count of  his  want  of  moral  principle  ?  And  if  it  be  said 
that  in  this  case  the  character  of  the  man  can  do  no  essential 
harm  to  the  company,  but  that  in  politics  questions  of  right 
and  wrong  come  up  all  the  while  ;  that  indeed  is  true,  but  yet 
there  may  be  cases  where  the  services  of  a  man  who  is  none 
of  the  best  may  be  greater  than  those  of  any  other,  while  he 
may  be  put  under  such  a  stress  of  motives  that  his  character 
will  be  neutralized. 

And  yet  the  general  rule  can  only  be  not  to  vote  for  a  man 
whom  on  account  of  his  character  you  cannot  trust,  who  has 
no  convictions  on  political  subjects,  who  is  a  mere  soldier  of 


SOME   POINTS    OF   POLITICAL   ETHICS   EXAMINED.       393 

fortune,  who  will  make  use  of  his  place  to  favor  corrupt  jobs. 
This  independence  of  the  single  voter  is  the  great  purifying 
agency  in  politics.  If  there  is  even  a  tithe  of  a  party  that 
will  in  ordinary  times  vote  for  no  such  man,  parties  will  put 
forward  their  best  men  ;  if  this  is  done  on  one  side  it  must  be 
done  on  the  other,  or  the  good  will  by  moral  affinity  pass 
over ;  and  seldom  have  times  been  so  bad  that  a  separation 
of  men,  according  to  their  principles,  from  a  party  would  not 
be  able  to  destroy  it.  And  this  becomes  the  more  important, 
when  we  take  into  account  how  bad  politicians  send  down 
an  evil  taint  through  a  whole  community.  They  are  the  suc- 
cessful men  who  manage  states  and  nations,  and  so  the  young, 
the  aspiring,  begin  to  think  that  unscrupulousness  is  necessary 
to  success.  They  are  the  great  men  in  the  people's  eye,  and 
so  the  idea  of  greatness,  stripped  of  moral  strength  and  wis- 
dom, becomes  dexterity,  readiness  to  carry  ends  and  outwit 
other  men.  There  is  such  a  crop  of  aspirants,  each  of  whom 
lays  his  claims  on  services  rendered  to  the  party,  that  the  evil 
of  the  example  spreads  wide,  and  the  idea  of  what  is  de- 
manded for  filling  political  office  becomes  miserably  low,  so 
that  what  statesmanship  means  we  must  gather  from  history, 
and  not  from  actual  life. 

It  has  been  often  inculcated  in  this  country,  that  it  is  the 
duty  of  the  best  class  of  citizens  to  attend  the  primary  meet- 
ings, as  they  are  called,  and  there  to  use  their  influence  for 
the  nomination  of  fit  men.  That  this  may  be  done  to  ad- 
vantage sometimes,  there  can  be  no  question.  But,  just  as 
a  certain  class  of  under-managers,  who  know  all  the  voters, 
feel  at  home  in  such  meetings,  so  the  best  citizens  are  re- 
pelled from  them.  Probably  if  they  obeyed  the  advice  of 
being  present,  the  caucus-system  would  develop  another  and 
a  lower  part  of  its  machinery,  as,  when  low  tenements  give 
way  to  good  houses  in  one  quarter  of  a  city,  it  is  only  to  re- 
move the  inferior  population  somewhere  else. 


394  POLITICAL   SCIENCE. 

$  129. 
The  individual  conscience  never  gave  any  great  trouble  to 
.  ,       ancient  legislators,  when  they  undertook  to  lay 

Collisions  of   law  o  '  j  j 

and  conscience.  j-^e  heavy  burden  of  state  authority  upon  it. 
But  when  Jews  were  brought  under  pagan  authority  and 
obliged  to  submit  to  idolatrous  ceremonies  or  to  suffer,  a  re* 
sistance  was  called  forth  which  has  since  been  repeated  in 
numberless  instances  by  Christians,  from  the  time  that  the 
Apostles  said,  "  We  ought  to  obey  God  rather  than  men," 
until  now,  when,  on  this  plea,  Catholic  bishops  refuse  to  ob- 
serve the  laws  of  the  German  empire.  And  it  is  one  of  the 
highest  things  that  can  be  said  both  of  human  nature  and  of 
the  Scriptures,  that  conscience  is  so  quickened  by  the  religion 
there  taught,  that  the  humblest  persons  will  endure  any  suf- 
fering rather  than  do  what  the  law  of  righteousness  and  of 
God  seems  to  them  to  forbid.  Without  this  quickening  of 
conscience  and  the  objective  standard  given  for  its  guidance, 
modern  civilization  would  have  been  impossible. 

There  are  no  moralists  who  do  not  hold  that  if  the  last  an- 
tecedent before  action  is  a  conviction  that  the  action  ought 
not  to  take  place,  it  is  wrong.  That  is,  whether,  objectively 
considered,  the  action  be  wrong  or  right,  it  is  wrong  to  him 
who  performs  it  with  such  a  conviction.  This  is  the  rule  of 
the  Apostle  Paul :  "  To  him  that  esteemeth  anything  to  be  un- 
clean, to  him  it  is  unclean."  "  Whatsoever  is  not  of  faith,  is 
sin."  It  is  thus  possible  for  two  moral  authorities,  the  state 
and  the  individual,  to  come  into  collision.  Both  cannot  be 
objectively  right,  the  one  in  commanding,  the  other  in  dis- 
obeying, at  the  same  time  ;  but  both  may  regard  themselves 
to  be  right.  What  now  shall  be  done  ?  Shall  the  private  per- 
son as  such  yield  the  point  ?  But  this  would  involve  the  ab- 
surdity that  a  subordinate  moral  power,  like  the  state,  could 
nullify  the  law  of  God,  and  so  the  subordinate,  the  parent, 
require  from  his  child  disobedience  to  the  law  of  the  state, 
the  under-officer,  from  the  soldier,  against  the  express  com- 
mand of  the  superior  officer.      In  other  words,   obedience 


SOME   POINTS   OF   POLITICAL   ETHICS    EXAMINED.      395 

would  thus  be  due  only  to  the  next  higher  moral  authority, 
so  that  the  individual  is  cut  off  from  the  Divine  Being,  some- 
thing as  the  lower  vassal  or  even  as  the  vassal's  serf  was  cut 
off  from  the  suzerain.  As  that  rule  made  nationality  impos- 
sible, so  this  would  make  a  moral  universe  impossible.  It 
may  be  said,  however,  that  it  is  presumption  for  the  indi- 
vidual to  adopt  a  different  rule  of  duty  from  that  which  the 
law,  representing  the  wisdom  of  the  state,  has  laid  down  ; 
he  must  submit  his  views  of  human  relations  and  convictions 
concerning  what  is  right  to  this  higher  power,  and  obey.  It 
may  indeed  be  presumption  for  him  to  judge  as  he  does,  and 
if  so,  he  "  strikes  violently  against  the  high  seat  of  Justice  " 
to  his  cost.  But  states,  too,  have  been  wrong  ;  they  are  not 
always  the  most  enlightened  nor  the  fairest  of  moral  legisla- 
tors, and  individuals  by  their  resistance  have  taught  states 
something  of  their  upright  convictions.  If  all  the  resistance 
to  unrighteous  law  had  been  blotted  out  of  the  world  by  such 
a  rule  as  that  of  the  necessity  of  absolute  obedience,  the 
world  would  be  much  worse  than  it  is  now. 

So  then  individuals  must  follow  their  consciences,  and 
states  must  follow  theirs  ;  a  collision  must  take  place,  and 
suffering  be  endured.  If  the  individual  is  right  it  will  be  felt 
by  and  by,  and  law  will  be  modified  or  abrogated.  A 
healthy  conscience  is  one  of  the  most  impracticable  and 
strongest  things  in  the  universe  ;  it  will  in  the  end  enlighten 
the  bigoted  or  the  unprincipled  to  see  moral  relations  under 
a  new  aspect.  If  it  is  merely  fanatical,  that  is,  supported  by 
no  just  views  of  the  true  standard  of  duty,  its  resistance 
serves  to  excite  discussion  and  thus  to  give  light. 

The  same  rule  which  we  have  applied  to  the  state,  holds 
good  in  all  the  analogous  cases  of  the  parent  in  relation  to 
the  children,  the  military  officer,  the  civil  officer  in  relation 
to  their  subordinates  ;  and  where  obedience  has  been  held  to 
be  due  to  the  commands  of  a  king,  it  must  be  limited  by  the 
lawfulness  of  the  commands  measured  by  the  divine  law.  If 
the  Quaker  believes  that  according  to  that  law  of  Christ, 
"  swear  not  at  all,"  he  may  not  take  an  oath  as  a  witness  or 


396  POLITICAL   SCIENCE. 

juror,  he  must  resist  and  suffer,  if  the  state  in  so  trifling  a 
matter  should  carry  out  its  authority.  The  soldier  must  ren- 
der an  unquestioning  obedience  in  all  the  ordinary  operations 
of  war,  but  all  the  early  Christians  held  with  reason  that  he 
could  not  join  in  pagan  rites ;  yet,  on  the  other  hand,  it  was 
senseless  scrupulosity,  when  a  soldier  in  Tertullian's  time 
came  forward  to  receive  a  donative  with  the  laurel  crown  in 
his  hand,  because  he  was  a  Christian  (Tertul.,  de  cor.  mil., 
cap.  i.), while  the  others  had  theirs  on  their  heads.  The  Qua- 
kers have  sometimes  followed  the  principle  that  it  is  unlawful 
to  pay  taxes  to  support  a  war  ;  but  this  too  is  over-scrupulous  ; 
if  they  were  forced  into  the  army,  they  might  refuse  to  "  re- 
sist evil,"  but  the  taxes  which  they  paid  they  had  nothing  to 
do  with  after  these  went  into  the  public  treasury.  There  are 
many  worse  uses  made  of  public  moneys  than  to  pay  and 
equip  armies. 

$  130. 

The  duties  of  the  state  are  chiefly  pointed  out  by  the  con- 

Certain  duties  of  stitution  and  law  as  far  as  the  citizens  are  con- 

the  state.  cerned  ;    and  by  the  right  theory  of  the  state 

unjust  or  deficient  law  may  be  rectified.     Into  this  field  of 

ethics  we  forbear  to  enter,   and  will  only  examine  certain 

points  where  there  may  be  some  difficulty  for  the  state  itself 

with  the  best  intentions  of  deciding  what  it  ought  to  do. 

With  the  progress  of  moral  ideas  a  state  may  receive  new 

How  it  must  deal  light  on  certain  practices  before  unquestioned. 

with  bad  institutions.  It  may  now  appear  that  the  law  allowed  some 

habits  or  institutions  which  sound  morality  and  the  highest 
views  of  expediency  must  condemn.  But  these  having  long 
existed  have  left  a  deep  impress  on  opinion  and  social  rela- 
tions. Supposing  that  the  necessity  of  reforms  is  admitted 
and  that  it  falls  within  the  competence  of  the  state  by  the 
ordinary  course  of  legislation  to  make  them,  is  it  bound  to 
do  this  at  once  or  by  a  gradual  process.  (1.)  This  case  of 
conscience  must  have  presented  itself  to  the  early  Christians, 
after  there  was  a  manifest  decay  of  paganism  and  the  cmpe- 


SOME   POINTS   OF   POLITICAL   ETHICS   EXAMINED        397 

rors  had  gone  over,  with  their  despotical  power,  to  the  Chris- 
tian side.  Should  they  have  waited  and  temporized,  or  have 
cut  down  idolatry  and  heathenism  at  once,  just  as  the  pagan 
emperors  had  tried  to  put  down  the  religion  from  Judea  by 
persecutions  ?  We  ask  not  what  with  our  faith  in  religious 
liberty  they  ought  to  have  done,  but  what  with  their  con- 
victions was  the  course  open  before  them  ?  With  their  views 
no  other  course  was  open  than  that  which  was  pursued  in 
successive  edicts  from  Constantine  onward  through  the  fourth 
century  and  into  the  fifth.*  Yet  even  they  went  to  work  by 
a  slow  process. 

(2.)  We  put  another  case  on  which  the  Protestant  states 
had  to  act  during  the  reformation  period,  and  acted  very 
badly.  A  large  amount  of  property  in  every  part  of  Europe 
had  been  given  by  public  or  private  persons  for  religious  uses. 
Some  of  the  lands  so  bequeathed  supported  convents  of 
monks  or  nuns  ;  others  were  given  to  universities  with  obliga- 
tions attached  to  them  which  could  not  be  carried  out  by  the 
new  forms  of  Christianity.  And  the  question  as  to  the  right 
of  the  new  religions  to  divert  from  the  old  worship  the  places 
of  worship,  the  parish  churches  built  in  the  Catholic  spirit,  was 
one  deserving  of  attentive  consideration. 

It  was  everywhere  felt  among  the  Protestants  that  the 
churches  must  be  taken  from  the  old  religion,  which  was  no 
longer  the  religion  of  the  state  or  of  the  people.  Nothing 
remained  but  to  put  them  in  the  state's  hands,  as  a  trustee  to 
carry  out  the  purposes  nearest  to  those  for  which  they  were 
erected. 

(3.)  The  same  was  true  of  endowments  for  fellowships  and 
scholarships,  to  which  the  condition  of  praying  for  the  soul 
of  a  founder  was  attached.  These,  indeed,  were  traceable 
to  the  bounty  of  a  particular  person,  who  might  have  descend- 
ants still  living,  while  the  churches  would  generally  have  been 

*Comp.  E.  v.  Pasaulx,  der  Untergang  des  Hellenismus,  Munch., 
1854,  and  Chastel,  histoire  de  la  destruction  du  Paganisme  dans 
I'empire  de  l'Orient — a  work  crowned  by  the  Institute  of  France. 
Paris,  1850. 


398  POLITICAL   SCIENCE. 

built  by  the  contributions  of  many.  Were  now  such  endow- 
ments to  go  back  to  the  founder's  descendants,  if  they  could 
be  traced  ?  We  seem  obliged  to  give  a  negative  answer,  be- 
cause the  main  point  was  the  support  of  a  student;  and  the 
very  secondary  point,  the  praying  for  the  founder's  soul,  had 
become  impossible  and  illegal.  Nay,  if  not  illegal,  and  yet 
through  a  change  of  circumstances  not  to  be  executed,  the 
same  answer  still  remains  to  be  given. 

We  may,  then,  lay  down  this  general  principle,  that  when 
institutions  of  charity  or  education  cannot,  tinder  a  change  of 
religious  sentiment,  or  of  polity,  in  all  respects  fulfil  their 
original  design,  the  state  is  not  bound  to  restore  that  which 
was  originally  bequeathed,  but  may  carry  out  the  purposes  of 
the  donor  as  far  as  the  altered  state  of  tilings  will  allozu. 

(4.)  The  case  is  still  clearer  when  governments  suppress  re- 
ligious foundations,  like  convents  for  monks  and  nuns.  Here 
the  considerations  from  political  economy  are  so  strong,  that 
of  themselves  they  would  be  a  great  weight  on  the  side  of  the 
suppression.  The  very  considerable  power,  also,  which  such 
houses  give  to  a  religion,  making  it,  if  they  are  sufficiently 
numerous,  an  imperium  in  impcrio,  would  be  decisive  on  the 
same  side,  in  countries  where  the  inhabitants  are  no  longer 
Catholic.  Several  states,  holding  this  religion,  and  even 
maintaining  it  by  laws,  have  abolished  convents  in  modern 
times.  No  corporation  ought  to  be  absolutely  sure  of  being 
allowed  to  live  on,  when  all  the  state's  institutions  are  modi- 
fied or  done  away  with.  Such  eternity  of  continuance  cannot 
belong  to  the  private  foundations  of  mutable  men.  But  what 
ought  to  be  done  with  the  foundations  in  question  ?  As  the 
succession  of  monks  depended  on  law,  law  may  forbid  others 
from  entering  a  monastery.  But  shall  the  lands  revert  to  the 
heirs  of  the  donor  or  fall  to  the  state  ?  The  same  answer  in 
substance  must,  I  think,  be  given  here  as  was  given  above. 
The  state  is  not  positively  obliged  to  restore  them,  for  they 
were  alienated  entirely  by  the  original  donors,  but  ought  to 
do  with  them  something  good  in  itself  and  as  near  as  may  be 
to  the  original  intention.      If  a  monastery  helped  the  poor  by 


SOME   POINTS   OF   POLITICAL   ETHICS    EXAMINED.       399 

its  charities,  trained  up  the  young,  and  fulfilled  religious  ends, 
these  may  still,  in  the  change  of  things,  be  the  objects  to 
which  the  revenues  shall  be  made  to  contribute.  This  was 
the  plan,  I  believe,  in  Scotland,  although  it  was  thwarted,  in 
a  degree,  by  the  cupidity  of  the  chief  laymen.  In  England 
an  unrighteous  use  was  made  of  the  vast  wealth  lodged  in 
dead  hands,  and  the  same  is  true  to  a  large  extent  in  Germany. 
(5.)  There  are  other  cases  where  the  question,  What  ought 
to  be  done,  is  embarrassed  by  the  rights  of  property  of  particu- 
lar persons.  One  such  is  where  for  a  long  time  man  is  allowed 
to  become  the  property  of  man  ;  and  the  whole  system  of 
property  and  industry,  all  habits,  the  system  of  laws,  are 
woven  together  with  slavery.  That  the  state  has  a  right  to 
put  an  end  to  what  it  regards  now  to  be  a  violation  of  rights 
is  certain,  or  else  nothing  is  right.  But  two  points  of  difficul- 
ty come  up  here.  Shall  a  compensation  be  made  for  partic- 
ular losses  ;  and  shall  emancipation  be  all  at  once  or  gradual. 
As  for  the  question  of  compensation,  it  might  be  said  that  if 
proprietors  of  slaves  were  to  live  on  forever,  the  payment  of 
wages  to  freedmen  ought  to  be  an  equivalent  to  the  support 
of  the  former  slaves,  so  that  nothing  would  be  lost.  But  the 
death  of  heads  of  families  and  the  division  of  estates  make 
a  difficulty,  which  is  not  easily  got  over  except  by  requiring 
the  emancipated  slave  to  remain  on  the  plantation,  doing 
work  and  getting  wages,  or  by  paying  the  least  price  that  is 
just  to  the  proprietor.  But  the  one  of  these  would  be  unjust 
to  the  freedman,  the  other  to  society,  which  ought  not  to  bear 
the  burden  of  a  wrong  it  did  not  create,  but  only  endured. 
On  the  whole  some  delay  would  be  not  unjust, — some  interval 
as  brief  as  practicable  between  the  present  state  of  things  and 
the  new  one  demanded  by  righteousness.  But  a  compensa- 
tion to  be  paid  by  the  state  seems  unjust,  since,  if  the  aver- 
age cost  of  the  slave's  subsistence  had  been  less  than  that  of 
a  freeman,  taking  his  productive  power  into  account,  there 
might  still  be  something  due  to  him  ;  and  if  more,  it  is  a  bene- 
fit to  society  to  initiate  a  more  productive  industry.  On  the 
whole,  in  the  end,  society  ought  to  be  a  gainer.     As  for  the 


400  POLITICAL   SCIENCE. 

hard  cases,  they  are  not  peculiar.  Every  revolution  in  indus- 
try brings  with  it  some  temporary  evils  that  cannot  be 
avoided. 

These  remarks  will  not,  I  trust,  be  regarded  as  placing  all 
incorporations  at  the  mercy  of  legislation,  so  that  no  funds 
given  for  education,  for  the  poor  or  the  diseased,  or  for  the 
fine  arts,  can  be  sure  of  safety  from  the  whims  of  public  opin- 
ion and  of  lawmakers.  If  such  a  feeling  should  arise,  it 
would  destroy  a  great  part  of  the  public  spirit  of  a  country. 
It  would  be  better  to  maintain  a  number  of  worthless  institu- 
tions than  to  encourage  such  despotism  of  legislatures.  And 
better  still  would  it  be  to  have  general  laws,  in  violation  of 
which  corporations  of  certain  kinds  could  not  be  founded, 
either  by  the  living  or  by  testament.  But  what  has  been 
said  contemplates  extreme  cases,  where  there  can  be  little  or 
no  doubt  of  the  right  to  overthrow  institutions,  and  where  the 
only  doubt  is  what  measures  coming  after  shall  carry  out  as 
nearly  as  possible  the  spirit  of  the  ancient  founders. 

We  give  a  very  brief  consideration  to  other  cases  of  the 
other  cases  of  extreme  sort,  whether  affecting  the  citizen's 
difficulty.  rights  as  against  the  state,  or  the  state's  rights 

against  the  citizen  or  against  an  external  power. 

I.  What  can  a  state  in  justice  do  when  it  has  serious  ap- 
prehension of  an  important  and  powerful  subject  or  citizen  ? 
In  regard  to  strangers,  states  have  often  acted  on  the  ground 
that  they  might  be  ordered  out  of  the  country  whenever 
public  safety  or  honor  requires,  unless  some  treaty  stands  in 
the  way.  What  can  they  do,  when  the  obnoxious  person  is 
a  citizen  ?  The  Athenian  ostracism  will  supply  us  an  illus- 
tration which  is  to  the  point.  The  reason  for  the  temporary 
exile  which  was  voted  by  this  process,  lay  not  in  any  overt 
acts  of  disloyalty  to  the  state,  but  in  a  distinction,  as  a  head 
of  a  party,  earned  it  might  be  by  the  highest  merit.  Aristotle 
regards  it  as  plainly  being  not  absolutely  just.  (Polit,  Hi.,  8, 
§  6.)  But  it  has  been  defended  on  the  ground  that  the  old 
city  states  had  reason  to  fear  individual  citizens  vastly  more 
than  a  state  would,  which  had  a  large   and  scattered  popula- 


SOME   POINTS   OF   POLITICAL-  ETHICS   EXAMINED.      40 1 

tion,  and  that  designs  against  the  constitution  might  easily 
and  suddenly  be  supported  from  abroad.  The  expedience 
of  ostracism  may  be  admitted,  although  it  went  out  of  use 
at  length,  being  succeeded  by  accusations  of  one  leading 
political  man  by  another  brought  before  the  regular  courts, 
against  which  in  form  no  objection  on  the  score  of  justice 
can  be  brought.  Another  way  of  preventing  plots  might 
be  to  require  security  for  good  behavior  by  pledge  of  prop- 
erty or  bail  of  friends.  But  ostracism  is  justly  liable  to  the 
charge  of  injustice,  and  of  injustice  so  great  that  no  just  state 
could  make  it  one  of  the  public  institutions.  It  might  take 
away  the  best  man  in  the  state  ;  it  became  a  contest  of  par- 
ties and  of  heads  of  parties  ;  it  might  turn  a  citizen,  patriotic 
before,  into  a  foe  of  the  city,  and  do  all  this  by  a  direct  act  of 
wrong  in  stripping  him  of  his  personal  rights.  It  uses  pri- 
vate special  laws,  or  privilcgia,  to  accomplish  what  under 
general  law  would  be  enormous  injustice.  And  this  on  sus- 
picion or  even  without  suspicion,  out  of  mere  dislike. 

2.  A  state  may  by  conquest  become  sovereign  over  com- 
munities or  provinces  having  well-established  civil  rights. 
May  it  justly  withhold  these  rights  ?  We  take  it  for  granted 
that  the  old  right  of  war  by  which  such  new  subjects  might 
be  reduced  to  slavery  was  wholly  wrong.  Civil  rights,  such 
at  least  as  the  new  state  into  which  they  are  engrafted,  con- 
cedes to  its  own  citizens  according  to  its  idea  of  justice,  must 
be  conceded.  But  an  interval  of  time  may  elapse  and  meas- 
ures of  security  be  taken,  before  the  new  citizens  have  all 
the  freedoms  of  the  older. 

3.  Shall  it  be  asked  whether  a  state  may  repudiate  its 
debts  ?  In  no  possible  case  is  this  right,  unless  in  the  ex- 
treme one,  where  they  were  contracted  through  manifest  fraud. 
In  all  other  cases  the  community  must  pay  its  own  debts, 
and  not  lay  the  burden  of  them  on  those  who  were  induced 
by  public  legal  promises  to  advance  their  money. 

4.  Is  there  such  a  thing  as  prescription  against  the  state  in 
favor  of  the  citizen,  or  against  the  citizen,  in  favor  of  the 
state  ?   Why  may  not  the  cancelling  or  obliterating  power  of 

26 


402  POLITICAL   SCIENCE. 

time,  which  we  have  admitted  in  regard  to  private  claims, 
apply  equally  well  when  one  of  the  parties  only  is  a  private 
person  ?  States,  having  a  continued  and  long  existence,  are 
much  in  the  way  of  never  abandoning  a  claim  once  made,  or 
of  conceding  that  their  rights  can  expire.  And  yet  laws  be- 
come obsolete,  and  to  revive  them  may  be  unjust.  Ought 
not  both  parties  to  be  put  on  the  same  ground,  as  far  as  any 
influences  of  time  are  concerned;  while  the  private  person 
ought  to  have  no  benefit  from  his  own  fraud  or  gross  negli- 
gence, because  it  has  been  long  overlooked  by  the  public 
authorities. 

§  131- 

If  obedience  to  law  is  a  prime  duty,  including  for  the  citi- 
Resistance  to  law   zen  nearly  all  the  political  duties,  there  can  be 

and  right  of  revolu-  .  .  „  .  ... 

tion.  no  right  to  resist  officers  of  law,  as  such,  in  the 

discharge  of  their  lawful  duties.  But  an  officer  is  not  in  the 
discharge  of  his  duties  if,  in  a  fit  of  passion,  he  assaults  an 
innocent  person,  and  the  latter  has  the  same  right  of  self-de- 
fence against  him  that  he  has  against  any  one  else,  even  to 
the  taking  of  life.  But  an  officer's  command  to  do  an  unlaw- 
ful act  ought  to  be  met  first  by  passive  resistance  or  direct 
refusal  to  obey.  Thus  if  the  command  relate  to  something 
which  the  private  person  holds  to  be  irreligious  or  immoral 
or  illegal,  he  must  refuse  to  comply,  while  the  officer,  if  he 
holds  himself  to  be  bound  to  enforce  obedience  in  the  case, 
must  take  the  necessary  steps  to  have  the  disobedience 
brought  before  the  proper  authorities.  If  the  courts,  after 
the  case  is  acted  upon,  will  not  accept  the  plea,  the  person 
refusing  obedience  must  suffer.  There  is  another  possible 
case,  namely,  that  the  officer  prevents  the  private  person  from 
doing  what  is  lawful.  Here,  too,  he  is  ordinarily  to  submit 
to  force,  and  ought  to  have  as  in  all  cases  a  remedy  at  law 
against  illegal  interference  with  his  rights.  I  will  not  say  that 
after  arrest  the  private  person  may  never  in  any  case  escape 
from  what  he  deems  to  be  unrighteous  imprisonment.  Gro- 
tius,  a  lawyer  and   moralist,  tells   us  by  his  example  that  this 


SOME   POINTS   OF   POLITICAL   ETHICS   EXAMINED.      403 

Ts  sometimes  permissible.  But  the  general  rule  is  passive 
obedience  for  the  individual,  and  when  in  the  regular  course 
of  justice  this  becomes  necessary  it  ought  to  be  endured  from 
principle. 

There  is  and  can  be  no  right  of  cmcutc,  nor  of  a  district 
of  a  country  to  separate  itself  from  the  state.  For  this  would 
break  up  society,  and  every  disturbance  in  a  little  territory — 
no  matter  how  small — would,  if  it  gave  rise  to  the  right,  justi- 
fy perpetual  disquiet.  The  society  must  be  looked  at  as  a 
whole  under  one  law  which  no  part  can  set  aside. 

2.  The  Scripture  rules  (Rom.,  xiii.,  1-7,  I.  Pet.,  ii.,  13,  14) 
arc  given  to  individuals  and  no  other  rules  could  be  acted  on, 
if  obedience  to  law  is  to  be  the  general  duty.  It  is  not  the 
inexpedience  of  the  rule  or  the  oppressive  character  of  the 
government,  but  the  unrighteous  nature  of  the  law  which 
justifies  resistance. 

3.  We  cannot  argue  from  the  unlawfulness  of  an  individ- 
Cannot  argue   ual's  disobedience  to  the  law,  and  of  his  resist- 

hmon1romhduftireTo"f  ance  to  tne  magistrate  in  favor  of  the  unlawful- 
mdividuais.  ness    of   revolution.      Nor    can    we    show    such 

unlawfulness  from  the  harm  that  revolution  may  have  occa- 
sioned in  particular  cases,  for  it  is  quite  clear  that  without 
them  the  world  would  not  have  been  as  well  off  as  it  is  now. 
The  whole  history  of  Israel  is  determined  by  the  departure 
from  Egypt  against  the  will  of  the  king.      The 

Nor  from  their  evils.  .  , 

expulsion  of  the  risistratidae  was  necessary  to 
make  Athens  what  it  was.  The  same  is  true  of  the  expulsion 
of  the  Tarquins.  The  revolution  of  1688  was  of  incalculable 
advantage  to  England.  Of  our  American  revolution  I  need 
not  say  that,  besides  giving  birth  to  a  great  people,  it  has 
added  strength  and  given  spread  to  the  principles  of  English 
liberty  over  a  whole  continent.  Nor  can  it  be  reasonably 
doubted  that  the  French  revolution  was  necessary  for  the  de- 
liverance of  that  misgoverned  country  from  immense  social 
and  political  evils. 

There  are  many  crises  included  in  the  word  revolution, 
which  differ  considerably  from  one  another.     Sometimes  only 


4-04  POLITICAL   SCIENCE. 

a  dynasty  or  a  branch  of  a  family  is  driven  out  and  the  suc- 
cession slightly  altered.  In  the  revolution  of  1688,  a  king  ran 
away  and  was  politely  said  to  have  abdicated.  The  next  of 
kin  was  put  in  his  place,  with  the  right  conceded  to  her  hus- 
band, also  near  of  kin,  to  reign  with  her,  and  until  his  death 
if  he  should  survive  her.  But  not  a  person  suffered  death, 
not  a  law  was  altered,  not  a  single  act  of  armed  force  occurred. 
And  yet  this  peaceful  event  has  stamped  a  new  meaning  on 
the  English  constitution  for  all  time.  The  revolution  in  the 
American  colonies  in  1776  was  attended  with  war  and  much 
misery,  but  brought  with  it  no  changes  in  private  law  and 
few  in  public.  In  the  state  where  the  author  lives  the  charter 
of  Charles  II.  continued  to  be  the  instrument  of  government 
for  a  generation  after  the  termination  of  the  war.  On  the 
other  hand,  the  French  revolution  was  followed  by  the  most 
radical  changes  in  government,  constitution,  ranks  of  society 
and  law.  Add  to  this  that  while  the  other  revolutions  spoken 
of  were  passing  events,  satisfying  the  sober  judgment  of  the 
people,  and  exciting  no  desire  of  further  revolution  or  of 
change  by  force,  that  of  France  was  followed  by  no  equilib- 
rium or  social  rest,  and  the  spirit  of  change,  after  trying  all 
forms  of  polity,  may  be  said  to  be  chronic.  It  is  evident, 
Many  kinds  of  then,  that  the  word  covers  a  number  of  political 
movements,  in  one  of  which  only  a  sovereign  or 
dynasty  is  got  rid  of,  in  another  a  remote  and  feeble  allegiance 
is  shaken  off,  in  another  there  is  a  complete  overturning  of 
society  ;  in  one  case  a  revolution  is  an  utterance  of  the  sober 
judgment  of  a  people,  in  another  it  is  the  result  of  discontent 
with  the  present ;  in  one  case  it  is  a  conflict  of  principles  and 
power,  in  another  there  is  no  resistance  ;  in  one  case  it  is 
final,  and  the  beginning  of  a  new  order  of  things  ;  in  another 
it  is  an  endless  brewing  and  seething  of  elements  without  the 
power  of  forming  a  chemical  union. 

4.  It  is  made  probable  from  these  statements  that  whenever 
The  practical  que*  a  revolution  is  demanded  by  a  part  of  the  com- 
tioD  the  mam  one.  mun jty  f  the  practical  question  is  the  leading  one  : 
— Whether  it  is  likely  to  be  successful,  final,    and  satisfying; 


SOME   POINTS   OF   POLITICAL   ETHICS   EXAMINED.      405 

whether  the  society  is  prepared  for  more  self-govermcnt,  and 
for  a  new  or  partially  new  polity.  And  among  the  practical 
questions  this  may  be  of  great  importance, — whether  it  will  be 
necessary  to  overthrow  institutions  that  have  entwined  them- 
selves around  a  nation's  affections  and  history,  and  whether 
any  others  can  take  their  place.  For  it  is  manifest  that  a  new 
polity  built  on  bare,  untried  abstractions,  has  small  probabili- 
ties of  success.  This,  however,  is  not  the  place  to  discuss  the 
practical  question  which  finds  its  place  in  another  part  of 
this  work.  Granting  that  a  revolution  may  be  righteous  in 
itself,  it  still  remains  to  be  decided  on  practical  grounds 
whether  it  ought  to  be  attempted.  Theory  can  only  establish 
the  doctrine  that  such  a  change  may  not  be  morally  wrong  ; 
there  is  a  long  way  between  that  premise  and  the  conclusion 
that  in  a  particular  case  it  is  right  and  wise. 

Our  revolution,  although  carried  through  by  a  long  war, 
seemed  so  small  an  evil  that,  for  a  long  time,  this  country  sym- 
pathized with  all  movements  of  a  violent  kind  for  the  advance- 
ment of  political  liberty  ;  as  if  they  could  not  fail  to  bear  good 
fruit,  as  if  every  nation  had  enough  of  ripe,  political  judgment 
and  self-governing  capacity,  not  to  undertake  what  it  could 
not  complete,  and  knew  just  what  it  needed.  We  did  not 
seem  to  be  aware  that  our  own  success  was  prepared  for  us 
by  our  education  under  English  liberty,  or  that  we  simply 
followed  divine  providence  and  built  up  on  our  past  history. 
But  our  recent  four  years'  war,  which  began  so  mildly  in  an 
attempt  to  sever  the  Union  and  in  the  establishment  of  a  new 
constitution  for  the  seceding  states,  differing  but  little  from 
the  old  one,  but  which  ended  in  the  prostration,  the  almost 
destruction,  of  those  states,  and  in  the  final  abolition  of  sla- 
very, the  protection  of  which  was  the  great  motive  in  the 
struggle — this  war,  I  say,  ought  to  teach  us  that  men  in  con- 
flict do  not  know  one  another,  that  they  are  not  able  to  weigh 
the  chances  of  success  nor  their  own  resources,  and  that  what 
is  called  statesmanship  is  often  sheer  folly.  "  It  is  an  easy 
thing,"  says  Pindar  (Pyth.,  iv. ,  485),  "  even  for  persons  of  a 
weaker  sort,  to  shake  a  state  ;  but  to  set  it  in  its  place  again 


4C6  POLITICAL   SCIENCE. 

is  indeed  difficult,  unless  by  a  sudden  intervention  God  shall 
become  a  pilot  to  its  leaders." 

§132. 
Confining  ourselves  to  the  moral  question  whether  a  people 
n  •  ;„  «  ™  th,.  has  ever  a  right  to  undertake  a  chancre  of  its  own 

Opinions   on    the  o  o 

nght  of  revolution,     polity  by  force,  we  will  first  bring  forward  some 
of  the  opinions  that  have  been  held  on  this  subject. 

Greece,  the  fruitful   mother  of  political   forms,  passed,  in 
and  before  the  historical  times,  through  a  suc- 

In  ancient  Greece.  .  r      ,  1   •    1  1  11      1  1 

cession  of  changes  which  may  be  called  revolu 
tions.  The  old  kings,  whose  right  was  derived  from  the  gods, 
gave  way,  in  a  great  degree,  to  the  nobles  ;  and  these  again, 
especially  in  cities  where  the  class  of  common  citizens  grew 
in  wealth  by  commerce  and  domestic  industry,  had  their 
power  taken  from  them  by  tyrants,  who  would  naturally  be- 
long to  the  aristocratical  class.  The  tyrants  were  a  transitory 
phenomenon.  The  demits,  which  had  given  them  the  victory, 
expelled  them  ;  and  now  democracy,  verging  towards  ochloc- 
racy, and  at  length,  in  the  decay  of  the  country,  partly  over- 
powered by  a  new  set  of  tyrants,  had  its  day  of  glory  and 
of  shame.  Plato  was  aware,  no  doubt,  of  this 
historical  movement,  to  which  his  forms  of 
polity  somewhat  correspond.  They  are  (de  Repub.,  viii.)  aris- 
tocracy, timocracy,  oligarchy,  democracy,  and  the  tyrannis. 
Oligarchy  arises  from  overgrown  wealth,  tyrannis  from  over- 
grown liberty  (p.  562  B).  There  is  a  fatal  tendency  in  this 
successive  deterioration  of  politics,  as  he  supposes,  but  there 
is  no  hope  held  out,  if  we  do  not  mistake,  of  a  renewal  of 
the  cycle.  Polybius,  however,  in  his  sixth  book,  takes  up 
this  theory  and  goes  somewhat  farther.  He  starts  from  the 
simple  and  primitive  monarchy  which  is  followed  by  basilcia, 
or  kingly  power,  more  constitutional  and  systematized,  and 
this  again  from  itscognate  form  of  bad  polity,  the  tyrannis. 
From  the  decay  of  this  form  aristocracy  springs  up,  which  in 
tnrn  by  a  natural  degeneracy  passes  into  oligarchy.  The 
turn  of  democracy  succeeds,  which  has   its  origin  in  the  fact 


SOME   POINTS    OF    POLITICAL   ETHICS    EXAMINED.      407 

that  the  people  visit  with  wrath  the  iniquities  of  their  fore- 
most men.  From  the  violence  and  lawlessness  of  the  peo- 
ple, in  time  ochlocracy — mob  rule — is  engendered  (§  4). 
This  which  he  calls  also  cheirocracy— -fist  lazu,  "runs  out 
into  murders,  exile,  redistribution  of  lands,  until,  having 
reached  its  limits  of  barbarity,  it  again  finds  a  master  and  a 
monarch."  "  This  is  the  returning  cycle  of  politics,  this, 
the  economy  of  nature,  according  to  which  forms  of  govern- 
ment change  and  alter  and  again  come  back  to  the  same 
condition  as  before  "  (§  9).  A  cheerless  theory  without 
doubt,  and  false,  if  Christianity  is  true  ;  which,  however, 
is  pardonable  for  a  pagan  who  saw  no  effectual  cure  for 
human  evils,  and  is  one  which  even  some  modern  authors 
have  advocated. 

Aristotle  finds  the   necessity  for  the  alterations  of  polity 
laid  in  the   various,  often  irregular  changes  of 

Aristotle.  ...  b 

human  conditions,  but  opposes  Plato's  view  of 
their  orderly  sequence  (Polit.,  v.,  last  chap.).  Experience 
shows,  says  he,  that  all  politics  as  readily  run  into  their  op- 
posites  as  into  the  next  in  order.  Thus  oligarchy  arises  out 
of  democracy  and  the  converse  also  happens  ;  so  the  tyrannis 
passes  over  both  into  oligarchy  and  into  democracy.  More- 
over, tyrannis  being  Plato's  final  point  in  the  progress  ought 
to  be  perpetual. 

The  necessity  of  revolutions  seems  thus  to  have  been  ad- 
mitted by  the  best  political  thinkers  of  antiquity,  but  I  have 
met  with  no  formal  discussions  of  its  lawfulness.  I  cannot, 
however,  doubt  that  they  would  have  conceded  the  right  of 
opposing  an  unjust  government  or  a  usurping  one,  without 
stopping  to  ask  whether  a  majority  accepted  the  rule.  Even 
tyrannicide  by  an  injured  man  was  not  thought  so  badly  of 
as  it  would  be  by  us.  The  doctrine  of  some  of  the  Sophists, 
that  right  in  any  given  polity  depended  on  the  interests  of 
the  ruler,  rendered  it  almost  necessary  for  the  opposite  prin- 
ciple to  be  advocated  that  the  people  had  a  right  to  put  down 
the  unjust  ruler.  The  expulsion  of  the  Tarquins  was  approved 
and  gloried  in  by  the  Roman  people.     Injustice  placed  ruler 


408  POLITICAL   SCIENCE. 

as  well  as  subject  out  of  the  protection  of  the  law,  and  the 
state  or  a  party  in  it  could  rise  for  the  purpose  of  overthrow- 
ing him. 

In  the  history  of  Israel,  if  we  deduct  those  cases  where  a 
prophetic  command  excited  revolt  against  the 
unlawful  rulers  who  had  subjugated  the  people, 
there  remain  a  number  of  others  where  the  revolution  was 
undertaken  by  some  patriotic  man,  without  being  justified,  as 
far  as  it  appears,  by  any  express  divine  commission.  Such 
instances  may  be  found  in  the  book  of  Judges  (chapters 
iii.,  xi.). 

In  the  middle  ages  the  Popes  exercised  and  claimed  author- 
ity to  release   subjects  from  obligation  to  their 

In  the  middle  ages.  .  „ 

prince  on  account  of  some  offence  against  mor- 
als and  religion.  The  claim  of  Boniface  VIII.  in  his  contest 
with  Philip  the  Fair  amounted  to  this  :  that  the  temporal 
sword  must  be  used  ad  nutam  et paticntiam  saccrdotis,  that  if 
a  temporal  ruler  went  astray,  he  could  be  judged  by  the 
spiritual,  but  the  spiritual  was  above  judgment  ;  and  that 
the  subordination  of  the  temporal  powers  under  the  Bishop 
of  Rome  is  necessary  to  salvation.  After  effecting  nothing 
by  the  bull  unam  sanctam  and  other  messages,  he  put  the 
French  king  under  the  ban,  released  his  subjects  from  the 
oath  of  fealty  and  summoned  the  Emperor  Albert  of  Austria 
to  take  the  throne  of  France  as  being  vacant.  This  put  the 
right  of  revolutionizing  states  on  grounds  that  could  be  used 
against  subjects  in  defence  of  rulers  as  well  as  against  rulers 
themselves. 

It  was  not,  as   far  as  we  have  discovered,  until  after  the 
The  right  placed   Reformation  that  this  right  was  taken  off  from 

on  grounds  of  state  , 

right.  religious  grounds,    and   regarded    on    political 

grounds  as  belonging  to  a  people  who  were  to  judge  for  them- 
selves when  it  was  to  be  exercised.  Yet  under  the  feudal 
system  opposition  to  the  suzerain  on  the  part  of  his  vassal 
was  not  only  an  event  of  constant  occurrence,  but  the  vassal 
had  the  right  of  ending  his  relation  to  his  superior  by  re- 
nouncing his  fief;  and  when  this  was  done  on  account  of  de- 


SOME   POINTS   OF  POLITICAL   ETHICS    EXAMINED.      409 

nial  of  justice,  could  make  war  upon  him.*  Liege-men  were 
required  by  St.  Louis  to  refuse  aid  to  their  seigneurs  against 
the  suzerain.  In  fact  the  general  doctrine  that  the  posses- 
sion of  supreme  power  was  dependent  on  the  will  of  the 
society  in  the  early  Germanic  times,  may  be  argued  from 
elections  and  from  depositions  by  the  chief  men,  and  by  a 
certain  acceptance  of  a  new  king  by  the  people. f  In  some 
parts  of  Europe  the  states  acquired  by  convention  with  the 
prince  the  right  of  renouncing  their  allegiance,  of  supporting 
their  cause  by  arms,  and  even  of  deposing  him  (see  for  Ger- 
many Dahlman's  Politik.,  pp.  123,  129).  In  Magna  Charta 
King  John  agrees  to  the  appointment  of  a  committee  of 
barons,  who  are  empowered,  in  case  of  unreasonable  delay  in 
redressing  grievances,  "  together  with  the  community  of  the 
kingdom,  to  distrain  and  distress  the  king  in  all  the  ways 
possible,"  saving,  however,  him  and  his  queen  and  children 
harmless. 

Perhaps  it  was  owing  to  such  precedents,  to   the  influence 
Theories  after  the   °f  ancient  ideas  of  liberty  after   the  revival  of 
Reformation.  letters,  to  the  increased  power  and  great  misgov- 

ernment  of  the  princes,  and  to  the  divisions  produced  by  the 
Reformation,  that  in  the  sixteenth  century  theories  began  to 
be  formulated  in  which  the  power  of  the  people  was  extended 
further.  These  theories,  based  on  political  grounds,  came 
from  Catholics  as  well  as  Protestants.  Thus  George  Buchanan 
in  bis  jure  rcgni  apud  Scotos,  %  held  the  doctrine  that  there  is  a 
compact  between  the  king  and  the  people,  the  violation  of 
which  by  the  former  is  followed  by  forfeiture  of  his  rights,  so 

*Comp.  Warnkonig,  Franzos.  Reichs  u.  Rechtsgesch.,  i.,  §  in,  p. 
239,  and  for  the  right  of  resistance  in  general,  Guizot,  hist,  of  civil, 
in  France,  iii.,  p.  96.     Amer.  ed.  of  transl. 

f  Comp.  Grimm,  Rechtalterth.,  p.  231  et  seq.  of  ed.  1,  and  esp. 
Stubbs'  constitut.  hist.,  §  58,  who,  however,  somewhat  modifies  Kem- 
ble's  exact  statement,  that  the  witan  had  power  to  depose  the  king 
if  his  government  was  not  conducted  for  the  benefit  of  the  people. 
Saxons  in  Engl.,  ii.,  219. 

\  I  cite  the  opinions  of  Buchanan,  Languet,  Rose  and  Mariana, 
from  Hallani,  Hist,  of  Lit.,  ii.,  183,  186,  198,  aixl  Languet's  in  Hal- 
lam's  words. 


4IO  POLITICAL   SCIENCE. 

that  the  people  is  freed  from  its  obligation  towards  him.  If 
he  plays  the  tyrant,  they  have  a  right  to  make  war  on  him  and 
slay  him,  nay,  "  any  one  of  all  mankind  "  may  inflict  on  him 
the  just  penalty  of  war.  Thus  he  justifies  rebellion  and  tyran- 
nicide, the  last  of  which  he  defends  by  examples  from  classical 
antiquity.  An  eminent  French  Protestant  (1579),  Hubert 
Languet,  is  somewhat  more  moderate.  He  thinks  that  kings, 
"  who  lay  waste  the  church  of  God,  support  idolatry,  and 
trample  on  their  subjects'  privileges,  may  be  deposed  by  the 
states  of  their  kingdom,  which  indeed  are  in  duty  bound  to 
do  so,  although  it  is  not  lawful  for  private  men  to  take  up 
arms  without  authority.  As  kings  derive  their  pre-eminence 
from  the  will  of  the  people,  they  may  be  considered  as  feu- 
dally vassals  of  their  subjects,  so  far  that  they  may  forfeit  their 
crowns  by  felony  against  them."  A  book  published  in  1590, 
and  ascribed  by  some  to  Rose,  bishop  of  Senlis,  entitled  "  de 
jnsta  rcipubliccB  Christiana  in  reges  potcstate"  advocates, 
from  a  Catholic  stand-point,  the  pope's  right  of  deposing  a 
schismatic  or  heretic,  lays  it  down  that  the  oath  of  allegiance 
is  conditional  on  a  king's  observing  what  he  has  promised  to 
do,  and  that  to  withdraw  obedience  from  wicked  kings  is  a 
fundamental  part  of  the  law  of  Europe  ;  and  affirms  that  a 
tyrant,  whose  definition  is  made  to  suit  Henry  of  Navarre, 
may  be  put  to  death  by  any  private  person.  The  Spanish 
Jesuit,  Mariana,  in  his  "  de  rcge  et  regis  institutione,"  pub- 
lished in  1599,  gives  the  arguments  for  and  against  the  assas- 
sination of  Henry  III.,  by  Jacques  Clement,  which  occurred 
in  1589,  evidently  approving,  says  Hallam,  the  murder.  He 
also  declares  that  all  philosophers  and  theologians  agree  that 
any  one  may  kill  a  usurper.  As  for  a  lawful  prince,  who  is 
doing  intolerable  harm  to  the  state  or  religion,  the  estates  of 
the  realm  may,  after  ineffectual  admonition,  rise  in  arms 
against  him  and  may  put  him  to  death,  when  he  has  been  de- 
clared a  public  enemy  ;  and  any  private  man  may  do  the  same. 
This  rule  he  regards  as  a  safe  one,  because  it  implies  the 
consent  of  the  wise  and  experienced  in  unison  with  the 
people's  voice,  declaring  the  ruler  to  be  a  tyrant.      He  is  also 


SOME   POINTS    OF   POLITICAL   ETHICS    EXAMINED.      41 1 

in  favor  of  limiting  the  power  of  the  king,  and  his  theory- 
looks  towards  the  doctrine  that  the  people  is  the  ultimate 
sovereign. 

When  the  contest  in  England  between  Charles  I.  and  the 
parliament  culminated  in  war,  the  question  with 

In  England.  ,  .  .     ,         ,  .  r 

whom  the  right  lay  was  a  very  serious  one  tor 
conscientious  persons.*  Both  king  and  parliament  were  es- 
sential parts  of  the  constitution,  both  had  rights  and  were  in 
conflict;  who  should  decide  in  the  case  ?  If  the  king  had  that 
power,  all  liberty  was  at  an  end  ;  since  his  own  aggressions, 
as  it  was  claimed,  caused  the  war.  The  nation,  by  its  repre- 
sentatives, ought  to  judge  ;  since  the  interests,  the  wisdom, 
the  power  of  the  state  really  lay  in  their  hands,  and  there  had 
been  a  long  effort  to  introduce  new  notions  of  royal  preroga- 
tive opposed  to  the  rights  of  Englishmen.  Moreover,  a  doc- 
trine of  a  contract  between  people  and  king,  implying  really 
their  right  to  choose  and  to  judge  when  the  contract  was 
broken,  had  come  from  venerable  authorities  even  of  the 
church.  Thus  king  and  parliament  went  to  war,  with  good 
consciences  on  both  sides,  until  the  extreme  party  on  one 
side  procured  the  king's  death.  This  step  needed  justification 
before  the  world,  and  Milton,  for  that  purpose,  published  in 

February  1648-9  (2d  edition  in  1650),  his  "  ten- 

Milton's.  . 

ure  of  kings  and  magistrates,  proving  that  it  is 
lawful,  and  hath  been  held  so  through  all  ages,  for  any  who 
have  the  power  to  call  to  account  a  tyrant  or  wicked  king, 
and  after  due  conviction  to  depose  and  put  him  to  death  ;  if 
the  ordinary  magistrate  have  neglected  or  denied  to  do  it." 
This  was  followed  by  his  defensio pro  populo  Anglicano  against 
the  defensio  rcgia  of  Salmasius,  first  published  in  165 1,  and 
other  tracts  which  continued  the  controversy.  From  the 
"  tenure  of  kings  and  magistrates,"  omitting  his  authorities 
from  scripture  and  the  classical  authors — we  cite  his  leading 
propositions  ;  and  first  that  the  power  of  kings  is  only  "  trans- 
ferred and  committed  to  them  in  trust  from  the  people  to  the 

*  Compare  what  Philip  Hunton  says,  as  cited  by  Dr.  Whewell,  in 
his  El.  of  Morality,  13.  V.,  ch.  5,  §  892. 


412  POLITICAL   SCIENCE. 

common  good  of  them  all,  in  whom  the  power  remains  funda- 
mentally, and  cannot  be  taken  from  them  without  a  violation 
of  their  natural  birthright."  Secondly,  "  to  say  the  king  hath 
as  good  a  right  to  his  crown  and  dignity  as  any  man  to  his 
inheritance,  is  to  make  the  subject  no  better  than  the  king's 
slave,  his  chattel  or  his  possession  that  may  be  bought  or  sold." 
"  But  suppose  it  to  be  of  right  hereditary,  what  can  be  more 
just  and  legal,  if  a  subject  for  certain  crimes  be  [required]  to 
forfeit  by  law  from  himself  and  posterity  all  his  inheritance  to 
the  king,  than  that  a  king,  for  crimes  proportional,  should 
forfeit  all  his  title  and  inheritance  to  the  people  ?  Unless 
the  people  be  thought  created  all  for  him,  he  not  for  them, 
and  they  all  be  thought  in  one  body  inferior  to  him  single, 
which  were  a  kind  of  treason  against  the  dignity  of  mankind 
to  affirm."  Thirdly,  "  to  say  kings  are  accountable  to  none 
but  God,  is  the  overturning  of  all  law  and  government.  For 
if  they  may  refuse  to  give  account,  then  all  covenants  made 
with  them  at  coronation,  all  oaths,  are  in  vain  and  mere  mock- 
eries." Fourthly,  "  since  the  king  or  magistrate  holds  his 
authority  of  the  people,  both  originally  and  naturally,  for 
their  good  in  the  first  place  and  not  for  his  own,  then  may 
the  people,  as  oft  as  they  shall  judge  it  for  the  best,  either 
choose  him  or  reject  him,  retain  him  or  depose  him,  though 
no  tyrant,  merely  by  the  liberty  and  right  of  freeborn  men  to 
be  governed  as  seems  to  them  best."  And  this  right  of  the 
people  he  supports  by  a  passage  of  Scripture,  Deut.,  xvii.,  14, 
"  When  thou  art  come  into  the  land  which  the  Lord  thy  God 
giveth  thee,  and  shalt  say,  I  will  set  a  king  over  me  like  as 
all  the  nations  about  me,"  etc.  As  for  a  tyrant,  that  is  a 
man,  who,  whether  coming  to  the  crown  by  wrong  or  by 
right,  reigns  not  for  the  common  good,  but  for  himself  and 
his  faction,  he  would  make  short  work  with  such  a  ruler,  and 
leave  it  open  for  a  private  man  to  deal  with  him,  as  Ehud 
dealt  with  Eglon,  king  of  Moab.  Milton's  appeals  to  author- 
ity and  example  on  behalf  of  a  nation's  right  to  depose  a  king, 
are  very  full  and  to  the  point.  The  defensio  against  Salma- 
sius  runs  along  the  same  line  of  argument,  only  dealing  more 


SOME   POINTS   OF   POLITICAL   ETHICS   EXAMINED.      413 

with  the  constitution  of  England.  He  hopes  (chap.  10)  that 
impartial  persons  will  be  satisfied  that  he  has  proved  from 
the  law  of  God,  rights  acknowledged  by  the  nations,  and  the 
institutes  of  his  own  country,  that  a  king  of  England  can  be 
brought  to  trial  and  capitally  punished.  ' '  The  House  of  Com- 
mons (prdo  plebeins)  had  a  right  to  judge  within  itself  and  to 
delegate  to  a  court  the  power  of  judging  the  king  by  its  su- 
preme authority."  He  claims  that  the  House  of  Commons 
alone  was  a  parliament,  "  totis  numeris  absolutum,"  and  was 
as  legal  a  body  after  Pride's  Purge  as  before. 

The  right  of  the  community  to  change  its  government  for 
opinions  m  Eng    good  reasons,  of  which   no  one  else,  not  even 

land   at  and  before 

168S,  1689.  the  chief  magistrate,  but  the   community  only, 

is  the  judge,  and  the  right  to  bring  the  chief  magistrate  to  a 
capital  trial  for  his  wrong-doings  became,  of  course,  un- 
popular doctrines  on  the  fall  of  the  commonwealth.  In  the 
reign  of  the  second  Charles  non-resistance  and  passive  obe- 
dience in  all  things  not  immoral  were  taught  through  the 
English  church  ;  and  all  political  doctrine  that  could  justify 
the  rebellion  was  denounced  in  votes  of  parliament  and  in 
multitudes  of  pulpits.  Thus  Dr.  South  puts  the  question 
"  whether  it  be  lawful  for  subjects  in  any  case  to  make  war 
upon  the  magistrate"  (posthumous  serm.,  xviii.,  works,  vol. 
iv.,  258,  Amer.  ed.),  and  replies,  "  my  answer  to  it  is  in  the 
negative.  And  the  reason  is  because  the  subject  has  re- 
signed up  all  right  of  resistance  into  the  hands  of  his  prince 
and  governor."  "  When  a  man  consents  to  be  a  subject  and 
to  acknowledge  any  one  for  his  governor,  he  does  by  that 
very  action  invest  him  with  all  the  necessary  means  of  being 
a  governor  ;  the  chief  of  which  is  a  quitting  and  parting  with 
that  natural  right  of  resisting  him  upon  any  occasion  what- 
ever." Again,  of  a  nation  punishing  its  kings  he  says 
(serm.,  xxiv.,  vol.  iv.,  358),  "  that  while  God  punishes  infe- 
rior malefactors  by  the  hands  of  princes,  he  takes  the  pun- 
ishment of  princes  wholly  into  his  own."  "It  is  God's 
prerogative  to  be  the  sole  judge  of  princes,  and  heaven 
only  is  that  high  court  of  justice,  where  kings  can  be  legally 


414  POLITICAL   SCIENCE. 

arraigned,  tried  and  condemned."     In  this  he  virtually  begs 
the  question. 

As  the  country  and  the  church  began  to  be  alarmed  by  the 
measures  of  James  II.,  freer  doctrine  was  taught 
and  was  embraced  by  the  liberal  or  Whig  party. 
Locke's  two  treatises  on  government  to  which  we  have  re- 
ferred in  another  place  (§  63),  especially  the  second,  met  the 
non-resistance  theory.  A  community,  he  teaches  us,  is 
formed  by  unanimous  consent,  but  afterwards  the  will  of  the 
bare  majority  is  binding.  And  this  he  accepts  not  as  a  jural 
fiction  but  as  a  fact.  This  origin  of  government  authorizes 
the  majority  to  retain  or  delegate  power,  which  power,  how- 
ever, is  never  absolute  ;  because  no  man  by  nature  has  power 
over  his  own  life  or  the  property  of  another,  and  law  must 
be  conformable  to  natural  justice.  If  the  power  is  delegated, 
the  trustees  cannot  exercise  it  in  a  greater  degree  than  the 
majority  could,  governing  by  themselves.  Thus  the  property 
of  any  one  cannot  be  taken  without  his  consent  or  that  of 
the  majority.  This  power,  again,  cannot  be  transferred. 
Royal  power  acquired  by  usurpation  gives  no  right,  unless  by 
formal  consent  of  the  people.  Royal  power  exercised  tyran- 
nically dissolves  the  government.  The  government  is  dis- 
solved also  by  breach  of  trust  on  the  part  of  the  legislature 
or  the  prince.  There  is  thus  a  trust  put  into  the  prince's 
hand  on  the  execution  of  which  the  right  to  reign  depends. 
Locke's  principles  in  his  second  treatise  are  but  the  carrying 
out  of  those  of  Hooker  in  his  ecclesiastical  polity.  (Hallam's 
mtrod.,  iv.,  375.) 

When  King  James  was  got  rid  of,  the  right  of  deposing 
him  was  really  exercised,  although  in  appearance  covered  up 
under  misleading  words.  It  was  based  on  his  having  endeav- 
ored to  subvert  the  constitution  of  the  kingdom  by  breaking 
the  original  contract  between  king  and  people,  etc.  This 
original  contract  was  no  absolute  fiction  like  the  social  one, 
but  was  founded  on  facts  in  English  history,  was  supported 
by  parallel  arrangements  between  kings  and  people  scattered 
through  the  history  of  the  world,  and  was  confirmed   by  the 


SOME    POINTS   OF   POLITICAL   ETHICS   EXAMINED.      41 5 

true  theory  of  government.  It  may  be  said  to  express,  down 
to  our  time,  the  only  opinion  on  the  rights  of  resistance  and 
revolution  that  has  had  any  authority  in  England.  At  the 
trial  of  Dr.  Sacheverel*  in  17 10  on  impeachment  by  the 
House  of  Commons,  for  having  in  a  sermon  denounced  the 
revolution  of  1688,  the  managers  on  the  part  of  the  House 
took  this  same  ground.  As  Burke  states,  in  his  appeal  from 
the  new  to  the  old  Whigs,  the  foundations  laid  down  by  the 
Commons  on  this  trial  for  justifying  the  Revolution  were, 
that  there  was  an  ''original  contract  implied  and  expressed 
in  the  constitution  of  England,  as  a  scheme  of  government 
fundamentally  and  inviolably  fixed  in  King,  Lords  and  Com- 
mons. The  fundamental  subversion  of  this  ancient  constitu- 
tion, by  one  of  its  parts  having  been  attempted  and  in  fact 
accomplished,  justified  the  revolution.  It  was  justified  solely 
by  the  necessity  of  the  case  ;  as  the  only  means  left  for  the 
recovery  of  that  ancient  constitution,  formed  by  the  original 
contract  of  the  British  state,  as  well  as  for  the  future  preser- 
vation of  the  same  government."  The  most  important 
opinions  of  the  managers  are  given  by  Mr.  Burke  in  the  Ap- 
peal (works,  Bonn's  ed.,  iii.,  45-64). 

The  moderation  and  respect  for  law  and  order  as  well  as 
for  liberty  shown  in  this  revolution,  the  anxiety  that  it  should 
seem  to  be  an  exceptional  case,  have  been  of  vast  benefit  to 
the  English  race,  even  to  us  who  have  cast  off  kingly  power  ; 
and  with  the  doctrine  of  a  responsible  ministry  they  have 
been  safeguards  against  future  revolutions.  Still,  as  it  seems 
to  the  writer,  the  defence  of  the  revolution  as  explained  by 
Mr.  Burke  takes  for  granted  facts  that  had  no  existence.  If 
the  contract  was  original  and  yet  was  implied  in  a  scheme  of 
government  by  King,  Lords  and  Commons,  it  was  no  earlier 
than  the  origin  of  the  House  of  Commons.  Moreover  the 
constitution  had  been  growing  since  the  supposed  original 
contract.  And  there  seems  to  be  involved  in  the  original 
contract,   if  preserved,  no  possibility  of  future  growth  with- 

*  State  trials,  Howell's  ed.,  vol.  xv. 


416  POLITICAL   SCIENCE. 

out  a  departure  from  the  contract,  unless  the  parties  should 
make  a  change  by  common  consent.  How  much  neater  and 
simpler  to  have  said  that  the  king  is  under  obligation  before 
God  and  man  to  observe  the  laws  and  the  constitution  ;  that 
his  tenure  of  office  ought  to  depend  on  his  fidelity  in  these 
respects  ;  that  he  actually  promised  in  his  coronation  oath  to 
keep  the  laws  ;  that  allegiance,  being  correlative  to  protection, 
is  limited  by  his  fulfilling  the  duties  of  a  king,  and  that  when 
he  docs  great  and  intended  wrong,  so  as  to  destroy  confidence 
in  him,  it  is  for  the  nation  to  decide,  through  its  wise  men, 
whether  he  ought  to  reign  any  longer.  And  yet  England 
has  saved  itself  by  shunning  theories  and  by  taking  up  each 
difficult  case,  as  it  is  brought  along  by  the  stream  of 
events. 

The  French  theory  of  the  right  of  revolution,  as  expressed 
in  the  more  modern  overturnings,  has  come  to  be 

French  theory.  ,  111  •  / 

practically  not  so  much  that  the  sovereignty  ot 
the  people  is  the  source  of  rightful  power  in  the  state,  as  that 
every  idea  has  the  right  to  express  itself  in  life,  and  whether 
received  by  the  majority  or  not,  if  it  can  get  power  into  its 
hands,  to  control  the  country. 

In  the  United  States  the  right  of  the  community  to  alter  the 
Rightofthecommu-g°vei'nment  is  turned  into  a  peaceful  right,  by 

nitymtheU.  States.  the    process    Qf    reVising    the    Constitutions,   both 

state  and  federal,  in  a  certain  prescribed  and  constitutional 
way.  The  changes  are,  for  the  most  part,  effected,  not  by  a 
majority,  but  by  two-thirds  of  the  votes  actually  cast.  The 
question  of  unconstitutional  use  of  power, — as  whether  an  ex- 
ecutive officer  has  violated  constitutional  provisions  or  a  legis- 
lature has  passed  a  law  beyond  its  competence, — is  decided 
by  the  courts  before  which  an  aggrieved  individual  brings  his 
case.  The  executive  officers  are  liable  to  impeachment  for 
various  misdemeanors,  and  to  removal  from  office  if  found 
guilty  ;  besides  which,  they  have  no  immunity  from  being 
prosecuted  for  a  crime,  if  it  be  not  a  political  one,  before 
the  ordinary  courts  of  the  country.  The  states  have  no  right, 
on  any  pretext,  to  separate  from  the  Union,  and  such  seces- 


SOME   POINTS   OF   POLITICAL   ETHICS   EXAMINED.      417 

sion  is  almost  the  only  cause  for  which  war  can  arise.  Between 
the  different  states,  all  quarrels  are  composed  by  the  courts, 
and  in  case  of  any  violence  between  state  and  state,  or  of 
sedition  within  a  state,  if  the  power  of  the  state  is  not  suffi- 
cient to  quell  it,  the  power  of  the  Union  may  be  evoked  to 
restore  order.  Thus  the  theory  of  popular  sovereignty  is 
hedged  around,  and  has  its  violent  remedies  taken  from  it  by 
finding  peaceful  ones  within  its  reach. 

§  133. 

I  proceed  to  give  an  outline  of  the  theories  of  one  or  two 
Kam  o„  resistance  modern  writers,  in  regard  to  the  lawfulness  of 
topubhcauthont.es.  resjstance  and  revolution.  Among  them  I  in- 
clude Kant,  on  account  of  his  extreme  notions  on  the  extent 
of  the  citizen's  obedience.  Speculations  about  the  origin  of 
the  state  he  thinks  to  be  very  idle  for  the  citizen  ;  for  if  in  fol- 
lowing them  out  he  resists  the  law-making  authority,  he  is 
exposed  by  the  laws  to  utter  destruction.  Law,  which  is  so 
holy  that  even  to  make  it  practically  a  matter  of  doubt,  and 
hence  to  suspend  its  authority  for  a  moment  is  of  itself  a 
crime,  is  represented  as  not  coming  from  man  but  from  some 
supreme,  blameless  lawgiver ;  and  this  is  the  meaning  of  the 
proposition  that  all  magistracy  is  from  God  :  which,  not  as  a 
historical  foundation  of  constitutional  society,  but  as  an  idea, 
a  practical  principle  of  reason,  expresses  the  thought  that  the 
existing  lawmaking  power  must  be  obeyed,  let  its  origin  be 
what  it  may. 

From  this  the  proposition  follows  that  the  ruler  {i.  e.,  law- 
maker) sustains  only  duties  towards  the  subject  and  has  no 
obligations  that  can  be  enforced.  Further,  if  the  regent  (ex- 
ecutive officer)  acts  against  the  laws,  e.  g.,  through  illegal 
imposts  or  enlistments,  the  subject  may  meet  this  injustice 
with  complaints  but  with  no  resistance.  And  even  in  the  con- 
stitution no  article  can  be  contained  {i.  e.,  according  to  the 
right  theory  of  government),  making  it  possible  for  a  power 
in  the  state,  if  the  constitution  should  be  violated  by  the  high- 
27 


4l8  POLITICAL   SCIENCE. 

est  magistrate,  to  oppose  him  and  so  limit  him.  Against  the 
supreme  legislative  head  of  the  state  there  is  no  legitimate 
resistance  of  the  people  ;  for  a  jural  condition  of  things  is  pos- 
sible only  through  subjection  to  his  public  legislating  will. 
Hence,  there  is  no  right  of  sedition,  still  less  of  rebellion  or 
insurrection  ;  least  of  all  is  there  any  right  against  him  as  a 
single  person,  on  pretext  of  his  abusing  his  power,  to  seize 
his  person,  or  take  his  life.  The  most  trifling  attempt  to  do 
such  things  is  high  treason,  and  the  traitor  of  this  kind  ought, 
as  one  who  seeks  to  ruin  his  country,  to  be  punished  with 
nothing  less  than  death.  The  reason  for  the  duty  of  the 
people  to  submit  to  an  abuse  of  supreme  power,  and  even  to 
an  abuse  regarded  as  intolerable,  lies  here  : — that  popular  ris- 
ing against  the  highest  legislative  power  must  be  thought  of 
as  never  anything  else  than  contrary  to  law,  or  they  will  anni- 
hilate the  entire  legal  constitution.  For,  that  the  people  may 
be  authorized  to  do  this,  there  must  be  a  public  law  giving 
them  this  right  of  resistance  ;  i.  e.}  the  highest  code  of  laws 
must  contain  in  itself  a  provision  preventing  itself  from  being 
the  highest,  and  making  the  people  as  subjects,  sovereign 
over  him  to  whom  they  are  in  the  relation  of  subjects,  etc. 

It  may  be  necessary,  sometimes,  says  Kant,  to  amend  a 
constitution,  but  all  changes  must  emanate  from  the  sovereign 
in  the  way  of  reform,  not  from  the  people  in  the  way  of  revo- 
lution ;  and  the  reform,  when  made,  can  affect  only  the  exe- 
cutive, not  the  law-making  power.  When  a  revolution  has 
once  succeeded,  and  a  new  constitution  is  set  up,  the  unlaw- 
fulness of  the  movement,  at  its  beginning  and  in  its  course, 
cannot  free  the  subjects  from  the  obligation  to  comply  with 
the  new  order  of  things,  and  to  obey  the  existing  authorities. 
(Rcchtslehre,  works  v.,  153-157.) 

All  this  is  as  passive  as  the  most  despotic  master  of  a 
people  could  desire,  and  yet  Kant  deduces  state-obligations 
from  contract.  He  falls  into  the  rut  of  Hobbes  and  Spinoza ; 
and  as  the  "  Rechtslehre  "  was  published  first  in  1797,  it  must 
have  been  written  under  the  influence  of  the  events  that 
occurred  in  France  in  1792. 


SOME   POINTS   OF   POLITICAL   ETHICS   EXAMINED.      419 

Stahl's  views  as  to  the  right  of  resistance  may  be  gathered 
s.ahi  on  limits  of  from  the  following  passage  (Philos.  d.    Rechts 
obedience.  ii. ,  2,  p.   223) :     "  The  law,  therefore,  must  be 

for  the  king  not  merely  an  inward  binding  force  on  his  con- 
science, as  the  absolutists  will,  but  also  an  external  limitation 
imposed  by  public  justice.  If  now  w.ie  king  oversteps  the 
legal  limits,  if  he  aims  at  overthrowing  the  constitution,  his 
sovereign  power  cannot  on  that  account  be  taken  from  him  ; 
there  is  no  tribunal  of  justice  over  him,  but  his  commands 
must  find  no  execution.  For  the  subject  is  not  permitted  to 
judge  over  his  prince,  but  he  may  and  must  pass  judgment 
over  his  own  conscience;  and  there  must  be  a  boundary 
found  somewhere,  beyond  which  obedience  and  compliance 
cannot  pass.  This  is  found,  even  in  absolute  governments,  at 
the  point  where  the  king's  command  is  against  God's  law  or 
against  the  universal  sense  of  justice  and  of  honor.  But 
where  law  is  in  an  advanced  state  and  is  acknowledged  as  a 
limit  on  the  sovereign,  there  the  positive  provisions  of  law 
also,  and  the  existing  constitution  become  an  affair  of  the  con- 
science, so  that  no  well-meaning  man  can  lend  himself  to  their 
downfall.  All  this  is  indeed  no  complete  outward  security, 
for  there  can  be  found  tools  enough  who  will  still  obey  ;  hence 
in  the  last  resort,  the  check  on  the  king  is  furnished  by  the 
moral  power  of  public  opinion  and  the  strength  which  it  adds 
to  institutions.  And  this  is  sufficient.  On  the  contrary,  an 
institution  which  in  a  mechanical  way  makes  violation  of  the 
constitution  impossible  for  him,  which  by  its  force  at  once 
sends  him  back  within  the  due  bounds  or  dethrones  him, 
ought  not  to  be  and  cannot  be  provided.  Such  a  power 
would  itself  require  a  higher  in  turn  to  watch  over  its  right 
use,  and  so  ad  infinitum.  There  must  be  an  authority  over 
which  there  is  no  other  :  prima  scdes  a  nemine  judicature 
Quite  in  another  spirit  Fichte  (Naturrecht,  p.    182  works, 

vol.    iii.)  expresses   himself  thus  :    "the   people 
Fichte.  ;  l  l        * 

(be  it  well  understood  that  I  speak  of  the  people 
as  a  whole)  is  never  a  rebel,  and  the  term  rebellion,  used  of 
it,  is  the  highest   absurdity  that  can  be    uttered.     For   the 


420  POLITICAL  SCIENCE. 

people  is  in  fact,  and  according  to  right,  the  highest  power, 
above  which  none  can  go;  the  source  of  all  other  power,  and 
responsible  to  God  alone.  Through  its  assembling  together 
the  executive  authority  loses  its  power  in  fact  and  in  right.  [!] 
Only  against  a  higher  can  rebellion  find  pl'ace.  But  what  on 
the  earth  is  higher  than  the  people  ?  It  could  only  rebel 
against  itself,  which  is  absurd.  Only  God  is  above  the  people. 
Never  did  a  people  rise  up  as  one  man,  and  it  never  will,  if 
unrighteousness  has  not  reached  its  acme."  In  his  Sitten- 
lehre  (iv.  238  et  seq.)  he  says,  "It  is  against  conscience  to 
overturn  the  state,  unless  lam  firmly  persuaded  that  the  com- 
munity wishes  such  an  overturning.  And  this,  although  I 
were  convinced  that  the  greater  part  of  its  institutions  were 
contrary  to  reason  and  justice,  for  I  act  in  the  matter  not  for 
myself  alone  but  for  the  community.  But  it  can  well  happen 
that  the  common  will  is  entirely  against  the  state  constitution. 
Then  its  continuance  becomes  unjust  tyranny  and  oppression  ; 
then  the  state,  which  existed  only  as  a  necessity  (a  Nothstaat), 
falls  down  of  itself,  and  a  more  reasonable  constitution  takes 
its  place.  Every  honest  man,  if  he  is  only  satisfied  what  the 
common  will  is,  can  then,  with  a  good  conscience,  overthrow 
it." 

Some  of  the  most  esteemed  writers  on  Christian  ethics 
schieiermacher,  among  the  Germans  discuss  this  subject. 
Schleiermacher*  goes  for  passive  obedience 
strictly.  Harless  (Chr.  Ethik,  ed.  4,  p.  298), after  laying  down 
the  general  rule  of  obedience  for  the  individuaLconsiders  the 
case  of  attacks  on  civil  order  made  by  the  legitimate  ruler  or 
his  subordinates.  Here  obedience  cannot  be  righteously  de- 
manded, and  the  Christian  feels  himself  called  upon  to  par- 
ticipate in  opposition  to  the  power  that  is  seeking  to  destroy 
public  order  ;  "  yet  so  that  the  form  of  this  opposition  or  re- 
sistance, and  the  individual's  participation  therein,  be  confined 
within  the  limits  of  the  existing  order  of  a  people,  and  his 
own  personal  calling,  as  a  legal  (berufsmiissig)  protest  within 

*  Christl.  Sitte,  p.  271,  cited  by  Rothe. 


SOME   POINTS   OF   POLITICAL   ETHICS   EXAMINED.      42 1 

his  especial  sphere.  Force  the  Christian  never  exercises 
against  force,  whether  it  come  from  below  or  above."  "  If  the 
usurpation  triumphs,  the  Christian  can  by  no  means  acknowl- 
edge it,  but  must  remain  in  the  country  steadily  protesting 
against  it,  or  must  emigrate." 

Rothe    (Theol.   Ethik,  iii.,  §   1173),   after    considering  the  ' 
cases  where  refusal  to  obey  unlawful  commands 

K.  Rothe.  .         r   .  .  .  ,  ... 

or  lawful  magistrates  is  a  duty,  and  denying 
that  insurrection  against  them  is  never  right,  proceeds  to 
an  essentially  different  class  of  cases  (p.  979),  where  the 
magistrate  does  injury,  not  directly  to  the  individual  as  such, 
but  to  the  state  by  violation  of  law  or  constitution.  This  is 
in  fact  a  case  of  rebellion,  for  the  executive  power  can  rebel 
equally  with  the  subject.  Here  the  subject  must  refuse  obe- 
dience, but  may  not  stop  at  simple  refusal.  He  must  go 
farther  ;  and  if  this  revolt  of  the  magistrate  against  the  con- 
stitution and  consequently  against  the  state,  is  of  importance, 
he  must  withdraw  from  the  magistrate  the  acknowledgment 
of  the  rightfulness  of  his  power  ;  for  it  exists  only  in  virtue 
of  his  being  a  representative  of  the  constitution  and  giving 
himself  to  it  as  to  his  organ.  The  main  question,  however, 
is,  What  further  steps  are  now  to  be  taken  ?  Before  all  other 
things  there  must  be  a  fixed  conviction  in  the  nation  that  the 
sovereign  has  broken  the  constitution  and  has  done  this  in- 
tentionally. If  this  be  made  out,  the  state  is  in  fact  dis- 
solved :  as  Schleiermacher  says  (Chr.  Sitte,  p.  268),  "  where 
the  sovereign  violates  the  contract,  the  state  has  ceased  to 
exist,  and  there  is  a  reign  of  bare  force."  The  problem  of 
the  people  now  is  to  restore  the  state  as  securely  and  speedily 
as  possible.  If  the  sovereign  can  be  brought  back  from  his 
insurrection  against  the  constitution  and  be  made  to  subject 
himself  to  it  anew,  order  is  again  established  ;  but  if  this  be 
unsuccessful  and  he  resort  to  force,  then  especial  difficulties 
arise.  For  an  authority  above  the  highest  power,  to  which 
the  people  can  appeal  against  the  violation  of  the  constitution, 
is  in  the  nature  of  the  case  impossible.  The  question  now 
arises  whether  the  people  may  or  rather  whether  it  ought  to 


422  POLITICAL   SCIENCE. 

use  outward  power  against  such  a  sovereign.  This  question 
is  superfluous,  if  there  is  a  general  unanimity  in  regard  to  the 
breach  of  the  constitution  ;  for  in  this  case  obedience  towards 
him  is  suspended;  he  is  cut  off  from  the  use  of  his  functions 
and  deprived  of  his  office.  The  people's  right  to  do  this  can- 
not be  doubted.  But  if  there  is  not  a  general  agreement  as 
to  the  sovereign's  breach  of  the  constitution,  and  no  amicable 
agreement  between  opposite  opinions  is  to  be  reached,  no 
other  way  of  decision  remains  but  the  employment  of  force." 
As  it  seems  to  the  writer,  the  excellent  man,  whose  opin- 
ions have  been  given  in  a  free  translation,  has  some  bare 
places  in  his  exposition  of  the  right  of  resistance.  He  says 
that  the  state  "  ist  factiscli  aufgehoben  "  if  the  sovereign  has 
in  fact  and  intentionally  violated  the  constitution,  and  of  this 
the  people  is  to  judge.  But  is  the  state  really  thus  dissolved 
by  an  act  of  the  executive  ?  Does  any  one  feel  that  when  a 
coup  d'etat  is  defeated  and  the  prince  driven  away,  that  all 
law  has  to  begin  again  de  novo  ?  Could  a  criminal  plead,  in 
the  interval  between  this  act  of  the  king  and  the  restoration 
of  order,  that  he  violated  no  law  ?  A  revolution  of  the  most 
peaceful  kind  would  be  a  most  frightful  thing  if  this  were  so. 
The  author  too  speaks  of  dealing  with  such  a  sovereign  d 
r aimable,  condoning  his  offences,  and  perhaps  putting  one 
of  his  line  in  his  place.  But  surely  there  is  no  obligation  to 
do  anything  of  this  sort.  The  parties  are  now,  as  he  admits, 
bound  by  no  ties  ;  all  allegiance  is  dissolved,  all  confidence 
has  ceased  ;  the  monarch's  tenure  of  power  is  not  in  any  sort 
the  same  as  if  the  question  touched  his  family  estate.  The 
people  can  do  then  as  it  will  in  regard  to  the  tenure  of  exe- 
cutive power.  The  constitution  exists ;  and  not  even  that, 
much  less  the  state,  much  less  still  the  laws,  could  expire 
in  consequence  of  the  act  of  a  man  and  his  subordinates. 
There  remains,  after  the  sovereign's  crime,  a  people  organized 
under  law  and  constitution.  If  the  organized  people  so  de- 
cide, he  can  be  restored  or  one  of  his  line  be  called  in,  or  some 
one  to  begin  a  new  line,  or  they  may  do  without  kings.  In 
all  cases  there  is  a  continuity  of  the  state. 


SOME   POINTS   OF   POLITICAL   ETHICS   EXAMINED.      423 

§  134. 
The  teachings  of  the  New  Testament,  although  few,  have 
New  Testament  on  had  a  vast  influence  on  the  duty  of  obeying 
nght  of  revolution.  magistrates,  wherever  it  has  been  received  as 
an  authority.  The  principal  places  where  this  duty  is  treated 
of  are  Rom.  xiii.,  1-7,  I.  Peter  ii.,  13,  14,  16.  Besides  these, 
there  are  more  general  directions  of  obedience  in  Titus  hi.,  1. 
In  Hebrew  xiii.,  7,  17,  there  is  a  command  to  obey  Christian 
officers  equally  general,  on  which  it  may  be  observed  that 
apostasy  or  open  immorality  of  the  officers  would  without 
question  have  been  regarded  as  dissolving  the  relation  and 
abrogating  the  duty.  There  is  also  the  example  of  the 
apostles  refusing  to  obey  a  command  of  the  Sanhedrim  re- 
quiring obedience  at  a  point  where  a  Christian  could  not 
yield.  And  in  addition  to  these  there  is  the  Saviour's  com- 
mand not  to  resist  but  to  endure  evil,  together  with  the  prac- 
tice of  the  apostles,  to  waive  their  right  and  suffer  evil ;  al- 
though once  or  twice  St.  Paul  urges  his  claims  as  a  Roman 
citizen,  in  opposition  to  the  arbitrary  conduct  of  Roman  offi- 
cers in  the  provinces.  And  finally,  as  to  submitting  to  evil, 
there  was  a  choice  given  between  suffering  persecution  and 
fleeing  to  another  place,  which  choice  was  to  be  made  in 
view  of  what  the  various  claims  of  duty  required,  and  not 
for  the  sake  of  merely  saving  life  or  avoiding  shame  or 
suffering. 

$135. 
In  view  of  these  various,  most  wise,  and  important  passages 
we  have  to  say  first,  that  they  instruct  private 

Summing  up.  .  .  .  . 

consciences  in  cases  ot  individual  duty,  and  are 
not  given  as  a  law  to  the  state,  or  to  bodies  of  individuals 
acting  in  a  political  capacity.  This  is  clear.  The  New  Tes- 
tament makes  no  attempt  to  teach  political  doctrine.  It  im- 
plies rights  when  it  shows  the  virtue  of  waiving  them,  but  it 
never  enters  into  questions  of  legislation  or  government.  It 
may  be  said,  that   as  each  conscience  is  bound  to   "  obey 


^24  POLITICAL   SCIENCE. 

magistrates"  to  "submit  to  every  ordinance  of  man,"  it  fol- 
lows that  a  hundred  thousand  Christian  freemen,  constituting 
the  body  of  a  state,  may  not  resist  unconstitutional  encroach- 
ments of  the  supreme  executive.  But  this  does  not  follow 
any  more  than  that  a  Christian  army  would  do  wrong  in  not 
yielding  to  the  force  of  a  body  of  invaders.  The  state  must 
have  principles  of  action  which  are  outside  of  Christianity ; 
not  wrong,  but  extra  Christian.  It  makes  men  suffer  for 
assaults,  and  pay  their  debts.  But  the  individual  Christian 
will— it  may  be — not  prosecute  his  claims  nor  complain  of 
injuries.  Otherwise  there  is  no  especial  jural  province  and 
no  possibility  of  a  free  state. 

But,  again,  the  duty  of  obedience  to  magistrates  is  ex- 
pressed like  other  moral  precepts  relating  to  action  in  a 
general  way,  and  exceptions  are  possible.  The  duty  of 
obedience  to  parents  is  still  more  sacred,  and  yet  it  would  be 
right  for  a  child  to  disobey  a  father  who  ordered  something 
unlawful  or  was  in  a  state  of  intoxication,  and  even  to  resist 
him,  if  in  a  fit  of  rage  he  sought  the  child's  or  its  mother's 
life.  The  duty  of  the  soldier  and  of  inferior  officers  to  obey 
the  commander's  orders  is  not  only  imposed  on  them  by  law, 
but  also  by  the  necessities  of  military  service ;  but  both 
would  be  morally  justified  in  refusing  to  submit  to  a  general 
who  was  evidently  acting  traitorously  in  concert  with  the 
enemy. 

Thirdly,  the  obedience  thought  of  in  the  New  Testament 
is  limited  by  the  purpose  for  which  executive  authority  exists. 
In  Romans  xiii.,  3,  rulers  are  not  a  terror  to  good  works,  but 
to  evil.  They  are  ministers  of  God  for  good.  In  I.  Peter 
ii.,  14,  submission  is  required  to  human  institutions,  i.  c,  to 
law  and  its  administration,  because  they  are  founded  for  the 
punishment  of  the  evil  and  the  praise  of  the  good  ;  i.  e.,  for 
the  recognition  of  right  actions  and  well-doers  by  making  a 
discrimination  between  them  and  the  evil.  But  what  if  they 
fail  to  fulfil  this  end,  especially  if  the  highest  authorities  in 
the  state  are  untrue  to  their  appointment  as  ministers  of  God, 
so  as  to  break  the  law  themselves,  favor  injustice,  usurp  power 


SOME   POINTS   OF   POLITICAL   ETHICS   EXAMINED.      425 

not  given  to  them  ?  We  must  then  say  that  they  have  ceased 
to  be  ministers  of  God  as  well  as  ministers  of  the  laws.  All 
magistrates  in  the  idea  are  God's  ministers  ;  the  office  is  a 
part  of  the  moral  order  among  men  ;  but  in  fact  such  men  as 
Alexander  of  Pherae,  or  Ezzelino  of  Padua,  and  Dr.  Francia, 
are  the  devil's  ministers. 

Fourthly,  the  reasons  given  for  the  obedience  of  the  pri- 
vate person  apply  as  well  in  the  case  of  the  king  dc  facto  as  in 
that  of  the  kingdejure,  provided  that  there  is  an  actual  orderly 
administration  of  justice  and  an  apparent  intention  to  reign  for 
the  people's  good.  This  is  an  argument  ad  hominem  against 
legitimists,  cutting  off  the  justification  for  one  kind  of  revolu- 
tions, by  reference  to  the  end  and  aim  of  government.  When  it 
is  good  and  just,  no  matter  how  it  began  ;  when  it  is  not,  there 
is  no  right  of  the  ruler  to  his  power  ;  and  therefore  no  wrong 
in  principle  for  the  people  to  work  a  reform  by  dispossessing 
him  of  his  power.  It  may  be  hard  to  tell  when  the  usurper 
can  become — as  far  as  the  private  conscience  is  concerned — a 
lawful  king  ;  but  this  is  certain,  that  a  line  of  rulers  cannot 
on  the  principles  of  the  scriptures  be  expelled  solely  on  ac- 
count of  a  defect  of  their  original  title,  especially  if  they 
have  been  for  some  time  actively  accepted  by  the  people. 
Nor  is  it  right  for  an  expelled  king  to  disturb  an  established 
order  of  things  which  conforms  to  the  idea  of  a  righteous 
state  but  is  under  a  ruler  who  had  originally  no  claims  to 
the  throne. 

I  say  nothing  of  the  revolutions  in  the  Hebrew  common- 
wealth, except  that  in  general  they  furnish  no  sure  ground  of 
argument  on  either  side.  It  is  said  that  God  raised  up  Ehud, 
and  so,  it  is  said,  God  stirred  up  Hadad  and  Rezon  (I.  Kings 
xi.,  14,  23)  against  Solomon's  authority,  but  the  motives  and 
means  of  these  men  were  bad,  as  the  assassination  of  the 
king  of  Moab  by  Ehud  was  atrocious,  whatever  his  motive 
or  his  commission  may  have  been.  But  who  can  fail,  on  the 
other  hand,  fully  to  approve  of  the  conspiracy  of  the  high  priesl 
with  the  commanders  of  the  troops  against  the  old  queen, 
Athaliah,  and  of  the  summary  vengeance  inflicted  on  her  ? 


426  POLITICAL   SCIENCE. 

It  is  then  one  thing  for  a  private  man  to  attempt  resistance 
to  established  order,  and  to  take  the  law  into  his  own  hands, 
and  quite  another  for  the  people  to  expel  a  ruler,  change  a 
dynasty,  alter  a  constitution,  risk  a  civil  war  for  such  purposes, 
when  the  crisis  seems  to  demand  it.  And  here  by  the  people 
I  do  not  mean  the  whole  people,  for  it  can  never  be  known 
what  they  think,  and  least  of  all  at  a  crisis  like  the  beginning 
of  a  revolution.  Nor  do  I  mean  the  organized  people  which 
can  seldom  in  a  large  state  assemble  at  such  a  time.  Nor 
would  I  require  the  absolute  certainty  of  a  majority  s  sanc- 
tion of  a  revolutionary  attempt,  which  must  often  be  secret 
in  its  beginning  and  go  forward  in  hope,  with  the  possibility 
of  forming  an  incorrect  judgment.  When  the  pretender's 
friends  in  171 5  were  trying  to  get  up  a  conspiracy  in  his  favor, 
they  sent  word  from  England — as  I  have  somewhere  read — 
that  nine-tenths  of  the  people  were  for  him,  but  there  was 
no  movement  in  England  when  he  came  over,  except  one  of 
trifling  importance  in  the  north.*  Nor  on  the  contrary 
would  the  certainty  that  a  revolution  had  a  majority  in  its 
favor  be  alone  sufficient  to  justify  it.  We  require  a  vote  of 
two  thirds  to  alter  one  of  our  constitutions,  as  if  there  were 
a  more  decided  expression  of  opinion  necessary  to  change  a 
constitution  than  to  set  it  up  at  the  beginning.  How  much 
more,  when  armed  force  and  civil  war  are  probably  necessary 
for  the  change,  ought  a  revolution  to  be  well  weighed  and 
soberly  accepted  by  a  large  portion  of  a  people.  In  truth, 
no  rule  can  be  laid  down  more  definite  than  that  there  are 
great  abuses  demanding  change  or  great  wrongs  demanding 
redress,  that  the  mass  of  the  wise  and  good  are  in  favor  of 
the  movement  for  a  revolution,  and  that  others  are  not  against 
it  so  much  as  they  are  hesitating  through  timidity  or  conser- 
vatism while  they  admit  the  vastness  of  the  evil. 

There  is  a  practical  and  there  is  a  theoretical  side  to  a  rev- 
olution. Practical  considerations  only  can  justify  it  in  each 
particular  case.     Theory  only  shows  that  it  may  be  right  for 

♦Lord  Mahon's  Hist,  of  Eng.,  chap.  v. 


SOME   POINTS   OF   POLITICAL   ETHICS   EXAMINED.       427 

a  people  to  attempt  revolutions,  and  that  the  decision  rests 
with  them.  The  practical  considerations,  which  are  the  prin- 
cipal weight  in  the  scale,  are  drawn  from  the  genius  and  tem- 
per of  a  people,  from  the  probabilities  of  success,  from  the 
probabilities  of  establishing  a  better  government,  from  the 
amount  of  calamity  likely  to  be  endured  before  a  successful 
end  is  reached,  and  like  considerations.  The  probabilities  of 
success  are  uncertain,  because  they  depend  on  uncertain  or 
variable  causes,  such  as  the  ability  to  bear  heavy  burdens, 
the  military  skill  at  command,  the  zeal  which  can  be  called 
forth  in  the  people,  the  amount  of  principle  in  public  men, 
and  the  like.  This  side  of  the  subject  we  shall  not  consider 
at  the  present  time.  We  may  attempt  to  show,  in  another 
place,  that  some  approach  to  a  philosophy  of  revolutions  may 
be  made,  which  will  inspire  patriotic  advocates  of  them  with 
caution  or  with  confidence,  and  may  tend  more  than  hitherto 
to  prevent  ill-timed  schemes  for  reforms  in  the  way  of  vio- 
lence. At  present  all  that  we  shall  do  is  to  close  what  we 
have  thus  far  said  on  this  subject  by  a  brief  attempt  to  show 
that  there  is  no  wrong,  according  to  a  true  theory  of  the  state, 
in  revolution  in  itself  considered. 

Revolution  is  an  extreme,  exceptional,  remedial  measure, 
emanating  from  the  judgment  and  will  of  a  community,  which 
is  living,  at  the  time  of  the  attempted  change,  in  civil  order. 
None  but  the  community  have  a  right  to  decide  whether  the 
change  shall  be  made,  and  they  have  the  right.  The  govern- 
ment has  no  right  to  initiate  revolutions,  for  its  sole  duty  is  to 
govern  according  to  certain  laws,  and  under  a  certain  form  of 
government.  If  it  should  make  the  attempt  by  a  coup  d'etat 
to  overturn  the  existing  constitution,  the  attempt  would  be 
unlawful ;  for  it  did  not  receive  its  power  for  this  purpose  :  it 
could  not  do  this  rightfully  for  its  own  interests,  for  it  did  not 
exist  to  carry  out  its  own  interests,  and  it  could  not  do  this 
with  the  interests  of  the  people  in  view,  for  the  reason  already 
given  that  it  is  subject  to  the  constitution.  Even  if  we  sup- 
posed an  absolute  government  to  have  the  authority  as  far  as 
any  fundamental  law  was  concerned,  of  making  and  carrying 


428  POLITICAL   SCIENCE. 

out  what  political  arrangements  it  pleased  ;  it  certainly  could 
not  destroy  nor  attempt  to  destroy  societ)'  by  virtue  of  its 
absolute  power  ;  for  its  power  exists  for  the  security  and  pre- 
servation of  society.  If  such  a  government,  or  any  with  some- 
what of  an  absolute  character,  grants  a  constitution  to  the 
people  and  the  people  accepts  the  grant,  it  does  not  follow 
that  the  absolute  government  had  the  right  to  change  the 
constitution  at  will,  nor  that  the  people  acknowledges  such 
power,  but  only  that  they  could  do  no  better. 

A  people  have  the  right  to  change  or  to  defend  an  existing 
constitution  even  by  armed  force  if  resisted  ;  first,  because 
they  are  most  interested  in  the  matter  ;  secondly,  because  they 
have  the  most  wisdom  ;  and  tliirdly,  because  they  are  the  true 
source  of  power.  They  are  the  most  interested,  evidently, 
as  those  for  whom  and  for  whose  descendants  a  government 
exists.  They  represent  many  generations.  The  interests  of 
an  administration  or  a  dynasty  weighed  over  against  them, 
hardly  deserve  to  be  taken  into  account.  As  for  wisdom, 
the  assertion  just  made  may  seem  strange  ;  and  if  a  people 
has  been  ground  down  to  the  dust,  if  light  has  been  shut  out, 
if  their  leaders  have  been  cut  down  or  banished,  or  converted 
into  courtiers,  it  may  be  true  that  they  have  little  wisdom, 
and  most  probably  they  will  be  conscious  enough  of  this  not 
to  act  but  to  endure.  But  it  is  safe  to  say  that,  if  they  lack 
means  of  combination  or  men  to  lead  their  movements,  they 
are  well  aware  what  their  wants  are,  and  that  a  government 
is  far  from  being  wise,  which  relies  on  its  methods  of  corrupt- 
ing or  dividing  as  its  principal  security. 

But  a  community  also  is  the  real  source  of  power  in  the  last 
resort  within  the  territory  which  it  occupies.  The  executive 
may  have  the  power  in  its  hands,  and  may  be  able  to  crush 
the  people,  but  mere  power  gives  no  right,  or  else  right 
changes  with  every  change  of  power.  If  a  government,  in 
order  to  fulfil  the  ends  for  which  organized  society  exists, 
must  respect  and  protect  the  rights  of  the  individual  and  the 
welfare  of  the  society,  a  failure  to  do  this  ought  to  involve 
forfeiture  of  its  existence.     It  can  have  no  other  right  to  ex- 


SOME   POINTS   OF   POLITICAL   ETHICS   EXAMINED        429 

ist  except  that  of  serving  the  ends  for  which  it  was  instituted. 
Executive  power  is  a  kind  of  agency,  and  there  is  no  right  of 
the  agent  which  is  not  derived  from  the  purposes  for  which 
he  is  appointed.  If  there  is  an  instrument  showing  what 
these  purposes  are,  and  if  there  is  an  express  agreement  that 
he  shall  discharge  certain  duties  and  have  certain  authority, 
his  authority  is  conditioned  by  the  discharge  of  his  duties, 
and  ceases  of  right  when  his  fulfilment  of  duty  fails ;  or  if 
there  is  no  instrument  stating  in  express  terms  his  duties  and 
powers,  the  nature  of  the  case  shows  both  that  he  is  an  agent 
and  what  is  the  nature  of  his  agency,  and  that  when  his 
fidelity  to  his  trust  ceases,  he  ought  not  to  be  "  any  longer 
steward."  To  say  that  there  is  power  in  a  ruler,  by  what- 
ever name  called,  without  responsibility,  or  that  his  responsi- 
bility is  only  to  God,  as  if  his  being  God's  minister  gave  him 
a  right  to  his  ministry  when  he  did  not  fulfil  it,  and  that  he  is 
not  amenable  to  the  people  for  whose  benefit  he  holds  power, 
or,  that  when  he  misuses  his  office  he  has  the  same  right  to 
hold  it  as  before,  and  may  not  be  brought  to  justice  or  de- 
prived of  his  place,  seems  to  be  most  unrighteous  and  incon- 
sistent with  the  whole  system  of  human  affairs.  The  greatest 
wrongs,  on  this  theory,  cannot  be  righted.  The  chief  culprit 
must  escape  punishment.  What  wonder  if,  in  despotic  mon- 
archies, the  mad  freaks  of  unbridled  will  should  be  followed 
by  the  wild  process  of  assassination  ? 

Constitutional  monarchies  are  built  on  the  principle  here 
laid  down.  The  king  can  do  no  wrong  ;  therefore,  as  some 
one  must  be  responsible  for  every  wrong,  his  chief  adviser  or 
advisers  bear  the  pains  and  penalties.  If  now  it  were  pro- 
vided (in  all  constitutional  kingdoms)  as  by  the  English  con- 
stitution, that  the  minister  could  not  be  saved  from  impeach- 
ment by  an  act  of  the  crown,  and  also  that  when  found  guilty 
he  could  not  be  pardoned  after  conviction,  revolutionary 
attempts  of  the  supreme  executive  would,  to  a  great  extent, 
be  unknown.  There  would  still  remain  other  kinds  of  violent 
revolutions,  such  as  the  disintegration  of  a  country  by  force  ; 
separations  of  colonies  from  the  parent  state  ;  insurrections  on 


430  POLITICAL   SCIENCE. 

account  of  great  burdens  or  grievances  due  to  no  especial 
fault  on  the  ruler's  part  ;  movements  called  forth  by  religious 
oppression  ;  overthrowals  of  the  old  order  of  things  growing 
out  of  changes  in  the  distribution  of  property  or  removal  of 
the  centre  of  influence  in  a  country.  But  as  revolutions  are 
not  begun  without  some  expectation  of  success,  and  as  a 
people  possessed  of  constitution  freedom  would  be  little 
tempted  to  take  part  in  them,  their  number  would  then  be 
much  diminished  by  the  allegiance  of  a  large  part  of  the 
people  to  the  government,  and,  if  they  should  break  out, 
they  would  probably  be  neither  long  nor  violent. 

We  add  that  throughout,  in  all  political  movements  of  a 
revolutionary  kind,  the  people  must  judge  for  itself.  There 
is  no  power  in  or  out  of  the  state  that  can  perform  this  office. 
And  therefore,  as  the  responsibility  falls  on  the  people  and 
the  suffering  also  in  case  of  failure  ;  the  greatest  caution  is 
needed  in  counting  the  cost,  in  comparing  the  resources  within 
its  reach  with  those  that  can  be  used  by  its  foes,  in  going  into 
all  and  through  all  with  a  deep  conviction  that  its  cause  is 
right  in  the  sight  of  God. 

The  right  of  revolution,  when  resorted  to  as  an  extreme 
measure,  ought  to  be  and  has  been  of  great  benefit  to  the 
world.  If  it  were  understood  by  wicked  rulers  that  conscien- 
tious citizens  could  never  engage  in  such  movements,  they 
would  be  far  more  unscrupulous.  But  if  this  is  to  be  calcu- 
lated upon  as  a  possibility,  it  will  make  oppressors  cautious  ; 
they  will  not  dare  to  go  beyond  a  certain  point  ;  they  will  fear 
the  opinion  of  society.  If  the  best  men  in  a  community  be- 
lieve in  this  right  as  a  remedy  for  evils  in  the  last  resort, 
their  co-operation  will  give  strength  and  sobriety  to  an  in- 
censed people  ;  and  they  will  be  best  able  to  determine  what 
securities  shall  be  given  for  the  future — where,  in  short,  a 
revolution  shall  stop.  If  they  stand  aloof,  when  success  with 
their  concurrence  seems  possible  and  the  demand  for  violent 
reforms  is  imperative  ;  on  them  will  be  laid  the  guilt  of  failure, 
and  the  reproach  will  be  theirs  that  they  were  too  cautious 
and  not  self-sacrificing  enough  to  attempt  to  save  their  country. 


JJart    3. 

THE   STATE.— PRACTICAL   POLITICS. 


CHAPTER   I. 
EARLIEST     INSTITUTIONS. 


§   136.  (Introductory  Section.) 
POLITICAL  science  in   general  may  be  called  practical ;  for 
Theaimofpracti-  something  to  be  done  is  everywhere  the  end  of 
quiry.     And  yet  we    may   speak  of  political 


cal  politics. 


Ill 


theory  as  having  for  its  objects  the  nature  and  functions  of 
political  communities,  the  fundamental  relations  between  a 
government  and  a  people  with  other  matters  touching  the 
state  as  a  general  conception,  without  as  yet  approaching 
the  questions  :  How  the  ends  contemplated  in  the  existence 
of  the  state  may  be  best  attained  ;  how  liberty  and  order  can 
be  alike  secured ;  how  a  government  can  do  its  work  without 
encroaching  on  the  rights  of  individuals  or  of  a  people  ? 
These  and  like  points  touching  the  fit  constitution  of  states 
in  given  circumstances  belong  to  another  branch,  which 
we  may  call  practical  politics — a  branch  of  great  importance, 
nay,  in  some  respects  of  the  greatest.  For  if  the  ends  to  be 
realized  by  a  state  are  not  kept  in  sight,  or  are  not  provided 
for  by  a  good  working  constitution,  in  either  case  the  result 
must  be  a  failure.  Liberty  must  be  given  up  to  preserve 
justice  and  order,  or  a  defective  administration  must  be  over- 


432  POLITICAL   SCIENCE. 

turned  in  a  revolutionary  way,  in  order  that  the  ends  may  be 
secured  for  which  states  exist. 

The  aim  of  practical  politics  may  be  said  to  be  in  one  sense 
Limits  to  the  uses  the  optimus  reipublicae  status,  and   yet  in  an 

jf  this  branch  of  our  i   •      •  •  • 

subject.  other  sense,  this  is  an  enquiry  quite  beyond  the 

reach  of  either  branch  of  our  subject.  There  are  limits  in 
every  community,  within  which  the  practical  branch  especially 
must  stop  ;  and  the  theoretical  branch  can  only  show  what  a 
political  community  ought  to  be,  without  suggesting  any 
way  in  which  it  can  be  made  such.  If  for  instance,  it  be  de- 
sirable to  have  a  law-making  assembly,  there  are  communi- 
ties which  furnish  us  no  adequate  materials  for  instituting 
such  a  body  ;  hence  if  called  into  existence,  it  must  be  a 
failure.  We  come  then  to  this  limitation  ;  that  unless  a  com- 
munity is  such  as  to  be  capable,  without  further  experience 
and  with  no  change  in  the  order  and  plan  of  society,  of 
putting  on  the  best  form  of  government,  practical  politics 
can  do  little  for  it  immediately  besides  instructing  and  en- 
lightening its  public  men. 

There  is  another  limitation  of  great  importance.  The 
polity  of  a  country,  if  foreign  conquest  has  not  interfered 
with  its  orderly  developments,  is  as  truly  indigenous  and  the 
growth  of  local  causes,  as  the  animals  and  flowers.  At  first, 
if  we  conceive  of  a  regular  progress,  all  parts  of  the  world 
ought  to  agree  ;  afterwards  special  causes  will  give  the  same 
variety  to  human  institutions  that  we  observe  in  race  and 
language,  only  the  diversity  will  be  somewhat  less.  Institu- 
tions are  clung  to  with  affection  or  with  the  tenacity  of  habit 
which  we  should  regard  with  abhorrence.  Let  blood  re- 
venge serve  as  an  example.  Practical  politics  must  take  ac- 
count of  this  growth  in  certain  directions,  and  not  attempt, 
because  the  plants  are  not  the  best,  to  cut  them  up  by  the 
root  at  once.  It  must  rather  prepare  the  soil  for  better  ones 
in  the  future  ;  it  must  collect  the  results  of  experience  for  the 
instruction  of  makers  of  constitutions.  On  the  other  hand, 
it  does  not  pretend  to  have  all  sorts  of  constitutions  on  its 
shelves  labelled  and  ready  for  use — our  readers  will  perceive 


EARLIEST   INSTITUTIONS.  433 

whence  we  draw  our  illustration — but  it  may  properly  pass 
its  judgment  on  extinct  or  on  existing  constitutions,  showing 
by  way  of  example  wherein  they  have  fulfilled  their  ends  and 
wherein  they  have  been  unsuccessful,  as  well  as  the  reasons 
why  they  failed  or  succeeded. 

The  inquiries  within  this  branch  of  our  subject  are  such  as 
t,c  ,  „  ,«  ™a   these  :    the  nature    of  primordial  governments 

Its  compass  and  r  & 

sphere.  ancj    ^ie  pr0gress   Gf    political   societies  ;     the 

various  forms  of  government  ;  their  especial  characteristics, 
as  whether  they  be  pure  or  mixed  ;  the  departments  of  gov- 
ernment and  their  advantages  as  limitations  on  each  other  ; 
the  practical  relations  of  a  government  or  constitution  to 
municipal  institutions  and  other  self-governing  bodies  under 
it,  to  religion,  education,  art  and  science ;  the  checks  on 
govermental  power  ;  the  gradual  changes  of  states  ;  their  vio- 
lent changes  or  revolutions  ;  their  decline  and  decay. 
It  will  be  at  once  seen  that  we  follow  a  path  here  where  history 
its  relations  to  his  ought  to  be  continually  consulted.  Whether  its 
responses  should  be  embodied  in  a  work  like 
this  or  not,  and  at  what  length,  may  be  a  matter  of  doubt.  In 
his  politics  Aristotle  has  a  multitude  of  references  to  political 
forms  and  to  events  which  occurred  in  a  large  number  of 
Greek  states,  some  of  them  known  from  other  sources,  others 
quite  unknown,  which  without  doubt  must  have  acted  on  a 
mind  able  like  his  to  make  large  generalizations,  in  the  for- 
mation of  his  views.  He  also  wrote  another  work  entitled 
vrdkireiai,  polities,  giving  account  of  a  vast  many  states,  no 
fewer  according  to  some  than  two  hundred  and  fifty  in  num- 
ber, and  of  some  seventy  of  which  fragments  are  extant  or 
mention  is  made  by  ancient  authors.  Of  this  work,  which 
would  have  been  invaluable  if  it  had  come  down  to  modern 
times,  we  know  but  little  distinctly.  But  I  cannot  help  think- 
ing it  probable,  that  when  he  had  conceived  the  purpose  of 
writing  on  politics,  he  made  these  collections  for  his  own  im- 
mediate use,  that  he  might  establish  his  conclusions  on  the 
solid  basis  of  fact.  Montesquieu  roamed  over  a  vast  field  in 
endeavoring  to  discover  the  differences  between  the  laws  and 
28 


434  POLITICAL   SCIENCE. 

usages  of  mankind  but,  as  we  must  think,  with  less  success  ; 
because  he  does  not  sufficiently  analyze  his  material  nor  sepa- 
rate adventitious  from  fixed  causes  ;  on  which  account  he  ar- 
rives at  unsafe  conclusions.  In  the  present  treatise  we  shall 
aim  to  follow  these  "  maestri  e  duci,"  and  yet  venture  to  go 
beyond  them  in  regard  to  fulness  of  detail  when  our  way 
brings  us  to  the  constitutions  of  different  polities. 

$  137- 
The  first  subject  demanding  our  attention  is  the  political 
progress  of  society  from  its  early  stages,  or  the 

Early  polities.        r       &  *  .  . 

imperfectly  organized  primeval  communities, 
that  can  hardly  be  called  states,  and  which  show  their  devel- 
opment from  a  union  of  blood  relatives.  There  is  no  highly 
civilized  society  which,  if  its  history  is  traced  back,  does  not 
contain  some  vestiges  of  a  type  of  polity,  which  may  fairly  be 
supposed  to  be  connected  with,  and  to  have  grown  out  from, 
the  first  institution  of  mankind.  There  is  no  savage  or  un- 
civilized race,  which  cannot  in  its  institutions  be  referred 
back,  on  the  supposition  of  degeneration  or  of  natural  de- 
parture, to  social  forms  that  grew  out  of  the  family  state  or 
out  of  something  like  it.  Can  we  trace  this  progress  any 
farther  than  credible  historical  traditions  furnish  us  grounds 
to  stand  upon  ? 

There  are  two  difficulties  that  meet  us  here.  One  is  the 
difficulty  of  making  up  our  minds  whether  the  lowest  races 
now  in  existence,  or  of  which  we  have  any  record,  fairly  rep- 
resent primeval  man,  or  whether  a  degeneracy  in  morals 
from  an  original  state,  partly  owing  to  unfavorable  circum- 
stances of  life,  may  be  assumed  as  explaining  the  lowest 
conditions  into  which  the  human  race  has  fallen.  The  other 
difficulty  arises  from  the  changes  to  which  tribes  of  uncivilized 
men  were  subject  from  very  early  times,  owing  to  the  violence 
of  their  neighbors.  There  is  reason  to  believe  that  in  North 
and  in  Central  America,  earlier  and  more  civilized  societies 
were  conquered  by  their  more  savage  neighbors.  And 
according  to  Waitz  (Anthropol.   ii.,  359),  a  higher  culture 


EARLIEST   INSTITUTIONS.  435 

once  prevailed  in  the  heart  of  Africa,  as  is  indicated  by  two 
large  kingdoms  of  the  Mazimba  and  the  Monomotapa  which 
probably  existed  once,  and  by  the  confederations  of  tribes  on 
the  Zambeze  and  in  Londa.  The  Hottentots  also  have  been 
driven  out  of  their  former  territory  into  narrower  quarters 
and  otherwise  checked  in  their  development  by  more  power- 
ful neighbors.  The  history  of  the  short-lived  kingdom  of 
the  Zulus  under  Chaka,  and  others,  shows  to  what  uncivilizing 
influences  many  barbarous  tribes  are  subject.  We  must  ad- 
mit, then,  both  progression  and  degradation,  or,  in  the  words 
of  Mr.  Tylor,  "  under  proper  limitations  the  principles  of  both 
theories  are  conformable  to  historical  knowledge,  which  shows 
us,  on  the  one  hand,  that  the  state  of  the  higher  nations  was 
reached  by  progression  from  a  lower  state,  and  on  the  other 
that  culture,  gained  by  progression,  may  be  lost  by  degra- 
dation." (Primitive  Cult.,  i.  34.)  Of  course,  this  fair  state- 
ment, which  is  verified  by  history,  may  be  applied  to  ages 
anterior  to  history,  when  the  stock  of  civilizing  influences 
was  small,  and  men  were  more  easy  to  fall  into  the  lowest 
barbarism  than  it  would  be  now. 

*   133. 

But  what  is  the  starting-point  of  man  in  regard  to  govern- 
Early  family  com-  ment  ?  Were  families  distinct,  as  now  ?  or,  in  the 
munit>-  early  communities  which  had  the  feeling  of  be- 

ing descended  from  common  progenitors,  was  everything 
common — not  only  lands  and  dwellings — but  was  there  no  sep- 
arate marriage,  and  no  recognition  of  separate  children  ?  Did 
all  belong  to  all  under  some  kind  of  patriarchal  authority  ? 

The  theory  that  finds  in  such  a  community  the  earliest 
condition  of  man,  which  tracks  him  out  until  he  is  caught  at 
a  stage  of  life  below  that  of  some  birds  and  animals  that  are, 
for  the  time,  faithful  to  their  mates,  is  the  most  painful  one  in 
the  history  of  man  except  that  of  his  crimes,  and  is  relieved 
in  its  unpleasantness  only  by  the  immense  capacity  of  growth 
which  it  attributes  to  the  human  race  in  all  moral  and  social 
respects.     We  have  given,  in  the  first  part  of  this  work  (§  26, 


436  POLITICAL   SCIENCE. 

<§>  42  B.),  the  conclusions  of  archaeological  study  in  regard  to 
the  institutions  of  property  and  of  marriage.  As  to  property 
in  land,  or  the  community  system,  these  conclusions  may  be 
received  without  question.  As  to  marriage  and  the  family, 
one  cannot  help  doubting  them,  until  several  gaps,  such  as 
that  between  the  supposed  primeval  system  and  marriage,  as 
now  understood  in  civilized  races,  are  better  filled  up  ;  and 
until  exogamy,  an  unquestioned  practice  of  wide  extent,  is 
better  accounted  for.  But  aside  from  these  weak  points,  the 
government  of  these  communities  must  have  been  somewhat 
unlike  the  patriarchal  as  it  has  been  conceived  of.  For  if 
there  were  no  succession  through  fathers  and  no  common  an- 
cestor and  eldest  line,  either  election  or  actual  seniority  must 
have  determined  to  whose  hands  the  government,  what  there 
was  of  it,  should  be  committed. 

However  this  may  be,  and  in  whose  hands  soever  the  de- 
fence and  control  of  the  earliest  communities  may  have  been 
placed,  the  following  must  have  been  among  the  earliest 
usages  of  mankind  ;  in  regard  to  land,  no  separate  ownership, 
occupation,  a  feeling  of  right  to  anything  produced  by  labor 
of  the  individual  or  taken  by  him  in  a  wild  state  ;  in  regard  to 
marriage,  a  wide-spread  usage  which  shows  an  aversion  to 
marriage  within  the  clan  or  with  a  woman  of  the  same  name  ; 
bride-stealing,  or  purchase  of  a  wife  from  her  father  ;  in  regard 
to  the  family,  the  great  closeness  of  the  tie  between  a  child 
and  its  mother,  while  the  father  stood  in  the  background  ;  the 
interest  of  the  maternal  uncle  in  the  nephew  ;  the  feeling  of 
property  of  the  parent  in  the  child  ;  in  regard  to  the  effects 
of  marriage,  either  the  wife's  passing  over  to  her  husband's 
clan  or  gens,  or  the  husband  becoming  a  member  of  the  clan 
to  which  his  wife  belonged.  The  child,  of  course,  inherited 
no  land  until  the  causes  for  separate  land  began  to  be  active, 
but  it  is  natural  to  suppose  that  rights  to  certain  grazing 
grounds  would  at  an  early  time  arise  in  nomadic  tribes.  The 
laws  of  inheritance,  by  their  diversities,  seem  to  show  that 
they  sprang  up  after  diversities  of  social  life  in  the  various 
parts  of  the  world  had   become  fixed.      On  the  other  hand 


EARLIEST   INSTITUTIONS.  437 

the  punishments  for  violence,  especially  for  homicide,  by 
their  uniformity  show  an  extreme  antiquity.  Blood-revenge 
we  have  had  occasion  to  speak  of,  as  pointing  to  a  time  when 
the  loss  done  to  the  family  was  left  to  the  family  to  notice  ; 
and  the  compositions  in  cattle  or  money  point  to  a  some- 
what later  stage  of  human  progress. 

§  139- 
When  separate  property  began  to  exist,  we  find  several 
Early  tenure  of  stages  in    its  progress  toward  fixed  ownership 
,and-  in  the  family  of  the  proprietor,  by  which,  how- 

ever, we  do  not  mean  to  affirm  that,  wherever  it  now  exists, 
it  reached  the  goal  by  the  same  steps.  In  some  parts  the 
person  who  has  brought  the  land  into  cultivation  has  the  ex- 
clusive right  to  its  use  only  so  long  as  his  occupation  contin- 
ues ;  and  there  seems  to  be  no  power  of  selling  or  transferring 
or  transmitting  it  to  heirs.  Such  is  said  to  be  the  case  among 
the  Iroquois,  the  Indians  on  the  Orinoco,  in  New  Zealand,  in 
Malakka  (although  in  the  last-named  country  the  ruler  is  re- 
garded as  the  proper  owner),  among  part  of  the  Caffres,  and 
the  Malagashy  ;  while  in  the  Aztek  kingdom  neglect  of  culti- 
vation for  three  years  produced  a  forfeiture  of  land  from  that 
time  onward.  The  laws  of  Manu  gave  land  in  proprietorship 
to  one  who  had  cleared  it  of  timber.  It  is  said  to  be  per- 
mitted among  the  Circassians,  to  any  one  who  finds  an 
unenclosed  field,  to  settle  there  and  fence  it  around.  The 
theory  is  said  to  look  on  the  land  as  national  property ; 
and  this  is  nearly  the  "squatter's  right"  as  recognized  by 
our  laws  relating  to  territory  purchased  by  the  United  States. 
Land  reverted  to  the  communities  when  it  was  no  longer  cul- 
tivated. Lands  in  the  Althaslau  mark  became  common 
property  again,  when  the  bushes  had  grown  up  high  enough 
to  hide  a  yoke  of  oxen.  This  usage  points  back  to  a  state  of 
things  which  continued  in  the  Germanic  race  until  recent 
times,  and  has  not  yet  altogether  died  out.  Doubtless  in  the 
early  infancy  of  private  property  the  responsibility  for  till- 
age would  seem  more  natural. 


438  POLITICAL  SCIENCE. 

$  140. 
The  transmission  of  property  in  the  family  was  naturally 
Early  transmission  later  than    exclusive  occupation.     The  laws  of 

of   property  ;    espe-  ,  ,  .  A  1 J  J 

ciaiiy  of  land.  succession  have  been  various.     An  old  and  ex- 

tensive usage,  still  in  force  in  different  parts  of  the  world,  is 
that  of  the  passage  of  property  through  the  mother  or  some 
other  female  relative.  This  does  not  imply  a  political  sway 
of  the  woman,  but  only,  at  the  most,  a  system  of  relationship 
to  which  the  certainty  of  the  connection  between  the  mother 
and  her  offspring  and  the  uncertainty  who  was  the  father  of 
the  child  might  originally  have  given  rise.  Whether  this  is 
the  true  account  of  this  kind  of  succession  may  be  doubted, 
but  it  has  existed  long  since  the  alleged  ground  for  it  ceased 
to  exist.  In  many  places  dignity  as  well  as  property  is  trans- 
mitted according  to  the  same  law  ;  so  that  in  some  parts  of 
Africa  the  king's  sons  cannot  follow  him  on  the  throne,  but 
his  oldest  brother,  the  brother  of  his  mother  and  the  sons  of 
the  sister  of  the  latter  have  the  best  rights  of  succession. 
Examples  of  this  descent  of  property  or  of  rank  occur  in  the 
races  of  this  continent,  in  Polynesia  and  Australia,  among 
the  Malays  and  the  non-Aryan  tribes  of  India,  in  many  parts 
of  Africa,  among  the  ancient  Lycians,  the  Locrians  of 
southern  Italy  (where  the  noble  houses  according  to  the 
story  of  the  origin  of  the  colony  were  sprung  from  noble 
mothers  and  slave  fathers),  the  Etruscans,  and  perhaps  the 
Egyptians. 

Blood-revenge  has  already  been  spoken  of.     We  add  here 
that  while  it  appears  at  first  as  the  war  of  one 

Blood-revenge.  .  , 

family,  gens,  or  clan  against  another,  a  war 
which  might  go  down  from  generation  to  generation,  it  shows 
itself  afterward  in  a  milder  form  ;  banishment,  the  duty  of  the 
next  of  kin,  instead  of  the  whole  family  or  clan,  to  avenge 
the  slain  man's  death  ;  then  composition  by  agreement ;  finally 
composition  by  law  for  all  injuries  occasioned  by  violence, 
are  the  steps  which  mark  the  progress  of  justice,  as  it  comes 
to  be  the  work  of  society  and  of  legislation. 


EARLIEST   INSTITUTIONS.  439 

§    HI- 
In  the  early  societies,  frank-pledge  or  the  responsibility  of 
Muwai  responsi-  tne  whole  clan,  hundred  or  other  union  for  the 
Mity"  members,   plays    a   noticeable    part.     This    of 

course  implies  organism,  and  throws  the  detection  and  to  a 
degree  the  prevention  of  crime  on  the  community.  This 
must  have  begun  in  communities  of  relatives  by  blood,  which 
were  small  enough  for  each  member  to  know  the  character  of 
the  rest.  The  responsibility  meets  us  in  various  forms. 
The  brother  of  an  adulterer  or  his  next  relations  are  liable 
among  some  of  the  Polynesians  for  the  crime  of  their  kins- 
man. Among  the  Malays  the  family  is  bound  for  its  mem- 
bers, the  suku  or  gens  for  its  families,  the  whole  village  for 
the  sukas  there  living  together.  The  responsibility  touches 
debts  in  general  as  well  as  the  payment  of  the  composition 
for  blood.  A  similar  usage  appears  among  the  Bedouins  and 
the  Circassians.  In  parts  of  West  Africa  the  creditor  is 
thought  to  have  a  right  to  exact  a  debt  not  only  from  a  rela- 
tive but  from  any  countryman  of  the  debtor.  Old  Slavonian 
law  made  the  commune  responsible  for  theft  and  homicide. 
In  Russia  if  the  stolen  property  could  be  traced  to  a  particu- 
lar village,  the  village  was  required  to  give  restitution.  The 
Germanic  race  had  similar  usages,  with  which,  as  in  frank- 
pledge, a  system  of  police  might  be  connected.  Thus  as  the 
property  belonged  to  the  community,  the  crimes  and  wrongs 
lay  on  the  community.  It  is  a  relic  of  the  same  early  feel- 
ings and  usages,  when  the  feudal  vassal  committed  certain 
crimes  against  his  lord,  that  the  children  suffered  ;  and  this 
came  down  below  feudal  times  in  attainder  of  treason.* 

*  Many  of  the  facts  here  given  in  relation  to  early  societies  are 
found  in  recent  works,  such  as  I  have  mentioned  in  a  note  on  §  42, 
B.  Dr.  A.  H.  Post's  work  there  spoken  of,  which  is  intended  to 
serve  as  a  contribution  to  "  comparative  political  and  jural  science," 
has  been  principally  used.  Such  a  comparative  work,  based  on  broad 
and  unquestionable  foundations,  will  be  of  the  greatest  benefit  to 
students  of  political  and  jural  science.  At  present  Waitz's  work, 
continued  by  Gerland,  contains  more  materials  than  any  other. 


440  POLITICAL   SCIENCE. 


§    142. 
We  have  thus  reached  political  conceptions  in  their  rude 
forms.     Communities    are  taking  shape  under 

Early  governments.  . 

head-men  and  have  chiefs  to  give  counsel  and 
to  guide  in  peace,  or  in  war,  or  in  both.  Certain  persons  and 
families  begin  to  have  a  higher  rank  than  others  ;  they  are 
raised  still  higher  by  being  connected  in  race  with  the  pro- 
tecting spirits  of  deceased  ancestors  and  with  the  gods  of  the 
people.  Language,  common  religious  rites,  common  usages, 
and  the  like  united  certain  communities  together  against  cer- 
tain others,  their  foes  in  war.  Hence  confederations,  or 
larger  unions  more  or  less  lasting,  with  the  treaties  of  con- 
federates, and  the  treaties  of  parties  to  a  war. 

We  stop  for  a  moment  at  two  points,  the  head  man  of  the 
communities,  and  the  unions  of  the  communities  with  one 
another.  1.  There  must  have  been  a  chief  in  every  commu- 
nity, whether  chosen  by  the  community  or  succeeding  by 
some  law  to  a  deceased  relative.  These  chiefs  in  some  parts 
of  the  world  have  at  this  day  very  great  power;  even  the 
lives  of  the  clan  or  tribe  depend  on  their  will  ;  nor  is  this 
strange  when  the  power  of  life  and  death  within  the  family  is 
exercised  by  its  head.  Election  probably  can  be  accounted 
for  within  the  single  tribe  by  special  circumstances  unfitting 
the  next  of  kin  for  bearing  sway  ;  and  in  a  union  of  tribes 
the  military  qualifications  of  one  would  naturally  cause  him 
to  be  selected  before  others  of  equal  birth.  As  in  many 
transactions  the  chieftain  was  the  fit  representative  of  the 
tribe  or  clan,  it  is  not  strange  that  the  power  of  punishing 
and  that  of  giving  in  marriage  came  into  his  hands,  and  that 
he  was  at  length  held  in  many  places  as  the  ultimate  owner 
of  all  the  lands.  When  a  community  was  composed  of  seve- 
ral clans,  there  would  naturally  be  a  union  of  the  different 
heads  on  some  principle  acceptable  to  the  whole  community, 
and  a  senate  or  assembly  of  old  men  might  arise  to  act  as  a 
council  of  the  chief  and  as  judges  of  the  people.  In  the 
higher  races,  assemblies  of  the   people  or  the  heads  of  fami- 


EARLIEST   INSTITUTIONS.  441 

lies  appear  everywhere,  and  a  leading  class  more  or  less  con- 
nected by  birth  with  the  principal  family  is  not  wanting,  but 
there  is  a  diversity  of  usage  as  it  respects  nobility  proper  ;  nor 
are  kings  who  may  be  regarded  as  the  heads  of  a  number  of 
united  communities  always  found.  Among  the  Germans,  as 
described  by  Tacitus,  there  was  a  class  of  principes,  so  called 
from  their  office  and  not  necessarily  from  their  birth,  of  whom 
there  might  be  one  or  more  in  a  canton  or  a  hundred,  who 
exercised  certain  acknowledged  rights,  and  had  certain  pre- 
rogatives in  their  districts,  They  were  a  kind  of  upper 
house  in  the  assemblies  ;  they  judged  through  their  district 
with  the  assistance  of  elected  judges  from  among  the  free 
men  ;  they  had  the  privilege  of  surrounding  themselves  with 
young  men  or  comitcs  who  were  bound  to  them  by  a  pecu- 
liarly close  tie  :  but  this  they  had  not  as  nobles  but  as  prin- 
cipes, as  an  upper  class  to  whom  this  power  was  committed  by 
the  people. 

Kings  appear,  in  the  account  of  Tacitus,  in  part  of  the  Ger- 
man tribes,  and  are  wanting  in  others.  The 
Saxons  had  none  originally,  and  when  they 
needed  a  leader  of  their  army  they  chose  one  by  lot.  When 
a  war  was  over  he  returned  to  an  equality  with  the  other  head 
men  of  the  tribes.  This  difference  within  the  same  race  is 
remarkable.  It  has  been  maintained  that  in  older  times  the 
kingly  office  was  universal,  but  that  a  more  democratic  time 
came  when  they  were  disused  by  certain  tribes  or  collections 
of  tribes.  The  other  opinion,  that  the  tribes  without  them 
were  the  best  type  of  the  earlier  usages,  seems  to  me  most 
probable.  Caesar  knows  no  German  kings  except  Ariovistus 
who  was  so  called  by  the  Senate  of  Rome.  Yet  in  other 
branches  of  the  Indo-European  race  they  appear  very  gener- 
ally. Mr.  Freeman  says  that  kingship  was  "  an  office  which, 
like  any  other,  the  nation  could  give  and  take  away.  But 
it  was  something  more  than  an  office  ;  it  was  the  privilege  of 
the  chosen  house,  which  extended  itself  beyond  the  actual 
holder  of  the  office  to  all  the  members  of  the  Cynecyn,  the 
stock  of  stocks,  the  stock  from   which  alone  kings  could  be 


442  POLITICAL   SCIENCE. 

chosen,  and  of  which  every  member  was  in  some  sort  kingly." 
(Compar.  politics,  lect.  iv.,  p.  164.)  Waitz  finds  it  hard  to 
decide  whether  an  ancient,  kind  of  royalty,  having  somewhat 
of  a  patriarchal  character,  may  not  have  preceded  the  more 
modern  species.  In  this  case  the  growing  power  of  the  prin- 
cipes  may  have  put  an  end  to  it  in  several  tribes.* 

2.  The  natural  tendency  of  neighbors  who  feel  themselves 
to  have  very  much  in  common,  would  lead  to  confederations 
which  we  find  to  have  begun  in  prehistoric  times  among  the 
Greeks  and  Romans.  The  Israelites  in  war  united  under  a 
sJiophet,  who,  after  delivering  his  people  from  danger,  acted 
as  their  judge  or  ruler.  It  would  appear  that  the  tribes  were 
not  all  united  in  these  extemporary  leagues,  which  fell  to 
pieces  after  the  need  ceased  or  the  man  died,  and  which  led 
at  last  to  the  establishment  of  the  kingdom.  The  Germanic 
confederations  of  a  similar  sort,  such  as  were  denoted  by  the 
names  of  the  Franks  and  the  Anglo-Saxons,  led  finally  to  the 
establishment  of  nations  and  kingdoms.  The  same  leagues 
show  themselves  elsewhere  in  the  world.  Comp.  what  is  said 
of  the  Iroquois  below,  §  145,  and  in  chap.  7  of  Part  iii. 

§  143. 

We  will  now  give  a  few  examples  of  these  primitive  govern- 

Kxampies  of  gov-  ments,  selected  from  different  races,  and  tending 

ernments    after    an  .  _  i   •     i 

early  type.  to  show  an  advance  from  one  form  to  a  higher, 

until  we  reach  the  stage  of  the  city-state. 

The  Tunguses  of  eastern  Russia  have  had  a  division  into 
septs  and  clans,   the  feeblest  of  which  at  one 

Tunguses. 

time  contained  five  and  the  largest  four  hundred 
and  thirty-five  men.  In  1766  there  were  in  all  ninety  such 
divisions.  Every  sept  traces  back  to  a  common  ancestor. 
An  elder  chosen  by  the  families  in  the  sept  conducts  its 
affairs  ;  and  the  rudiments  of  political  union  may  be  seen  in 
the  presiding  officers  of  these  septs  who  are  chosen  out  of 
families  of  superior  rank.  Politically  considered  they  are 
thus  superior  to  the  Lapps  and  other  Nomads  of  the  Finnish- 

*  Verfassungsgesch.j  1,276,  whom  I  have  followed. 


EARLIEST   INSTITUTIONS.  443 

Altaic  race,  whose  constitution  of  society,  unless  modified  by- 
contact  with  superior  races,  rises  little  above  simple  family- 
government. 

Here  we  may  remark  that  the  tradition  of  common  descent 
may  often  be  deceptive.  It  may  happen,  as  was  the  fact,  I 
believe,  among  the  Scotch  clans,  that  one  portion  of  a  people 
is  reduced,  by  disease  or  war,  so  as  to  be  unable  to  maintain 
a  tribal  existence.  In  such  cases  a  kind  of  adoption  takes 
place  ;  they  are  engrafted  on  the  stock  of  a  larger  clan  of  the 
same  blood,  and  partake  of  equal  rights,  together  with  the 
name  of  the  new  stock. 

The  Kalmuks  and  Mongols,  nomadic  hordes,  like  the  Tun- 
guses,  rise  above  them,  possibly  by  influence 
from  more  southern  parts  of  Asia,  into  a  capacity 
for  greater  political  union.  They  had  long  preserved  the 
tribal  constitution,  and  seemed  incapable  of  an  extensive  con- 
federation, when  Temudjin,  born  about  11 55  A.  D.,  united  a 
large  part  of  the  hordes  and  laid  the  foundations  of  the  Em- 
pire of  the  Mongols.  But  here  we  seem  to  see  an  influence 
from  a  more  advanced  civilization  than  these  nomads  had 
reached.  For  Temudjin  or  Jenghiskhan,  as  he  was  called, 
when  the  supremacy  over  the  Mongols  was  conceded  to  him, 
belonged  to  a  tribe  known  already  as  the  golden  horde,  and 
living  in  the  north  of  China,  which  had  so  far  conquered  a 
union  of  hordes  on  the  Amur  as  to  compel  them  to  pay  trib- 
ute. It  must  have  been  this  influence  accompanying  Temud- 
jin on  his  flight  from  his  own  people  and  through  his  subse- 
quent career,  that  led  to  the  first  formation  of  the  Mongol 
law-book,  which  seems  to  have  an  attempt  to  unify  the  con- 
quests of  this  great  barbarian. 

§   144. 

Some  of  the  inhabitants  of  Caucasus  show  an  advance  up- 

institutions  in  cir-   on  tne  condition  of  the  Mongols,  when  we  look 

at  the  ranks  of  society  and  the   free  spirit  of 

these  mountaineers.      But  the  point  of  especial  interest  is  the 

brotherhoods,   which   have    some    resemblance  to  the  early 


444  POLITICAL   SCIENCE. 

unions  that  appear  in  some  of  the  Germanic  nations.  They 
differ  greatly  in  the  number  of  their  members,  which  run  up 
from  a  score  to  several  hundred.  Sometimes,  when  they  are 
reduced,  they  dissolve  and  join  more  prosperous  fraternities, 
or  it  may  be  that  one  dissolves  into  two.  The  tie,  if  not  that 
of  blood,  which  must  have  been  the  original  uniting  principle, 
is  regarded  as  equivalent  to  blood,  and  hence  marriages  within 
the  association  are  considered  incestuous.  The  elders  of  the 
fraternities  are  chosen  by  a  majority  of  votes,  and  one  of  them 
is  appointed  chief  judge.  His  duty  is,  when  disputes  arise 
within  the  brotherhood,  to  call  the  elders  together  in  order  to 
compose  the  matter ;  and  if  this  prove  impossible,  to  convene 
the  whole  body.  In  this  latter  case  the  elders  appoint  a  spe- 
cies of  jury  from  six  to  ten  in  number,  to  whom  the  manage- 
ment of  the  affair  is  entrusted,  and  who  choose  a  presiding 
officer  from  among  themselves.  On  greater  occasions  a  larger 
assembly  is  called  together,  made  up  of  all  the  brotherhoods 
of  a  district  or  tribe,  at  one  of  which,  meeting  on  account 
of  common  danger  apprehended  from  the  Russians,  Bell,  the 
traveller  in  Caucasus,  was  present.  It  is  interesting  to  find 
that  the  fraternities  among  the  Circassians,  like  the  Anglo- 
Saxons,  sustain,  or  sustained  towards  each  other  the  relations 
of  a  society  for  mutual  responsibility  and  assistance.  Thus, 
when  a  member  commits  theft  for  the  first  time  and  is  poor, 
the  others  pay  his  fine,  which  is  usually  reckoned  according 
to  the  price  of  so  many  oxen.  But  where  a  crime  is  repeated, 
the  fraternities  withdraw  their  protection  and  inflict  punish- 
ment on  the  offender.  There  is  also  throughout  Circassia  a 
price  for  life,  varying  with  rank — for  they  have  several  ranks, 
princes,  nobles,  free  proprietors,  and  slaves — and  with  sex. 
But  notwithstanding  this  institution,  blood-revenge,  which  it 
was  intended  to  extinguish,  still  survives.* 

*  Com  p.  an  article  on  Caucasus,  in  the  New  Englander,  ix.,  88-109, 
written  by  the  author  of  the  present  work,  the  words  of  which,  in 
part,  are  used.     The  institutions  are  in  the  wane. 


EARLIEST   INSTITUTIONS.  445 

Another  and  a  more  barbarous  race,  that  of  the  North 
North  American  American  Indians,  presents  to  us  several  peculi- 
arities. The  political  unit  in  early  times  seems 
to  have  been  the  sept  or  clan,  which  was  distinguished  from 
others  belonging  to  the  same  tribe  or  nation  by  some  animal 
(other  than  a  fish,  which  was  an  emblem  of  a  bad  spirit),  used 
as  a  mark  or  coat  of  arms,  and  probably  at  first  as  a  religious 
sign  or  a  protecting  spirit.  This  was  known  to  the  Algon- 
quins  as  the  Totem,  the  name  now  in  general  use.  That  the 
persons  having  this  for  their  mark  were  descendants  of  a 
common  ancestor,  seems  to  be  shown  by  the  fact  that  there 
was  no  lawful  marriage  between  those  who  had  the  same 
totem.  This  in  fact  was  their  common  name,  and  they  thus 
corresponded  somewhat  with  the  members  of  the  Roman 
gentes,  who  showed  their  common  ancestry  by  the  Gentile 
name — Fabius  for  instance — the  personal  name  preceding 
and  the  family  name  coming  after.  The  number  of  totems 
within  the  same  tribe  or  nation  varied  greatly  ;  from  three  as 
among  the  Delawares,  to  fourteen,  among  the  Sauks.  The 
Choctaws  had  eight  totems,  which  seems  to  have  been  a  not 
uncommon  number.  No  trace  of  this  division  has  been  no- 
ticed among;  the  Sioux.  These  different  clans  or  families  did 
not  live  territorially  apart,  but  the  same  village  might  be 
composed  of  divisions  belonging  to  each.  The  family  name 
of  the  child,  his  totem,  came  from  his  mother  and  not  from 
his  father. 

The  totems  seem  each  to  have  had  a  head-man,  and  at  the 
head  of  the  tribe  stood  a  sachem  or  prince,  generally  the 
child  of  the  preceding  chieftain.  Women  also  appear  at  the 
head  of  tribes  and  even  children,  for  whom  maternal  uncles 
acted  as  regents.  There  are  instances,  also,  of  elected  chiefs, 
for  the  most  part  taken  out  of  families.  The  power  of  the 
sachems  in  the  eastern  tribes  was  very  considerable,  in  the 
western  apparently  less  so.  They  could  undertake  no  war 
without  the  consent  of  the  nation,  yet    they  seem  to  have 


446  POLITICAL   SCIENCE. 

been  authorized  to  make  treaties  with  the  whites  without 
consulting  others. 

We  find  the  spirit  of  confederation  among  the  American 
The  confederacy  Indians  as  among  other  races.  The  most  re- 
of  the  Iroquois.  markable  instance  is  that  of  the  Iroquois,  con- 
sisting of  the  Mohawks,  Onondagas,  Senecas,  Oneidas  and 
Cayugas,  living  in  the  middle  of  the  present  State  of  New 
York.  The  league  had  been  formed  before  any  English  set- 
tlements were  attempted  in  America,  as  early  as  the  begin- 
ning of  the  seventeenth  century,  if  not  before.  In  171 5  the 
Tuscaroras  of  North  Carolina,  allies  of  the  Iroquois,  having 
been  driven  from  their  homes  and  broken  up,  fled  northward 
and  were  received  as  a  sixth  member  of  the  confederacy  by 
the  powerful  tribes  of  the  league.  The  wars  and  raids  of  the 
Iroquois  extended  from  Virginia  to  Lake  Huron.  We  find 
them  in  1744  yielding  up  to  the  colony  of  Virginia  all  their 
claims  to  the  country  of  the  Indians  lying  west  of  the  moun- 
tains, within  the  parallels  of  that  colony.  Their  policy  was 
to  keep  the  balance  even  between  the  English  and  French 
power  in  America.  Their  decay  was  due,  apart  from  exter- 
nal causes,  to  the  institution  of  a  nobility  who  were  chosen 
on  account  of  merit,  and  whose  power  so  far  increased  as  to 
undermine  that  of  the  old  chieftains  of  the  tribe.  Notwith- 
standing their  great  history  and  the  terror  connected  with 
their  name,  and  especially  with  the  name  of  the  Mohawks, 
their  fighting  men  were  estimated,  in  1660,  at  not  more  than 
twenty-two  hundred  ;  yet  the  habit  of  incorporating  the  re- 
mains of  conquered  nations  into  their  union  must  after  this 
have  considerably  increased  their  number. 

The  league  had  at  its  head  fifty  chieftains,  of  whom  the 
Onondagas  furnished  fourteen  ;  the  Mohawks,  nine ;  the 
Senecas,  eight ;  the  Oneidas,  nine  ;  and  the  Cayugas,  ten. 
They  stood,  however,  on  an  equality,  with  five  votes  each,  the 
Onondagas  being  placed  at  the  head,  and  the  Mohawks  fur- 
nishing the  leader  in  war.  Every  nation,  according  to  Mr. 
Morgan,  had  a  veto.  They  seem  to  have  had  a  strong  con- 
viction of  the  importance  of  union  without  surrendering  their 


EARLIEST   INSTITUTIONS.  447 

independence.  Every  nation  had  a  chief  for  the  affairs  of 
peace,  and  another  for  war.  An  assembly  of  chieftains  stood 
at  the  head  of  affairs,  chosen  out  of  particular  families. 
Unanimity  was  necessary  for  the  passage  of  any  measure, 
and  the  members  of  the  assembly  deliberated  in  separate 
divisions  before  they  met  to  take  common  council.  These 
meetings  were  secret,  and  the  results  were  communicated 
to  the  people  collected  together. 

§    146. 
On  the  American  continent  two  large  kingdoms,  with  a 
Changes  of  popu-  civilization  most  probably  native,  although  de- 
lation m  early  times,    j-jyg^  jn  one  0f  them,  from  earlier  sources,  were 
at  the  height  of  their  power,  when  the  Spaniards  first  explored 
the    country.      In    the    northern    parts  the    red 

In  America. 

men  have  both  changed  and  degenerated,  since 
they  became  known  to  the  first  English  and  French  settlers. 
There  is  evidence  also  to  show  that  a  large  and  flourishing 
race  must  have  been  displaced  by  wilder  tribes  between  the 
great  lakes  and  the  Ohio.  But  if  these  changes  were  taking 
place  in  this  continent,  separated  from  the  sources  of  culture, 
much  more  must  we  admit  the  probability  of  foreign  influence 

in  Africa.      Here  we  find  extensive  despotisms 

Africa. 

as  in  America,  agriculture  widely  diffused,  and 
a  tendency  towards  trade  and  city-life.  It  is  probable  also 
that  the  negro  race  is  not  altogether  unmixed,  and  certain 
that  Arabic  culture  has  been  travelling  for  ages  far  down  into 
the  middle  parts  of  the  continent.  Other  changes,  on  a  great 
scale  by  conquests,  seem  to  have  been  going  on  without  the 
help  of  foreigners  from  remote  periods  ;  nations  have  been 
mingled  with  their  conquerors  or  destroyed  ;  others  have 
been  expelled  from  their  homes,  a  remarkable  instance  of 
which  is  presented  by  the  Hottentots,  who  have  no  affinities 
of  race  with  their  darker  colored  neighbors,  and  are  regarded 
by  the  Caffres  as  earlier  inhabitants  of  South  Africa,  having 
been,  it  is  probable,  driven  down  in  the  course  of  time  from 
the  remote  north. 


448  POLITICAL   SCIENCE. 

In  the  negro  tribes  the  government  is  chiefly  a  patriarchal 
Government  in  the   despotism,    originating  no   doubt    in    force,    to 

negro  tribes   of  Af-  .  ,  .... 

rica.  which    the   common  people    submit  with  most 

degrading  marks  of  submission.  The  kings  demand  for 
themselves  to  some  extent  a  veneration  approaching  to  di- 
vine worship.  Succession  to  the  crown  is  within  the  royal 
family,  but  chiefly  through  a  female  ;  a  sister's  son  follows 
his  uncle.  This  is  in  conformity  with  a  law  of  inheritance  to 
which  we  have  already  had  occasion  to  advert. 

These  negro  kingdoms  are  not  all  despotisms.  Among 
the  Mandingos  the  royal  power  is  limited  by  a  council  of 
hereditary  nobles.  In  Bambarra  the  French  traveller  Raffa- 
nel  found  a  senate  consisting  of  three  ranks  or  classes,  and 
three  guilds  or  something  like  guilds  among  the  free  people. 
Here,  too,  a  kind  of  secret  union  for  police  purposes  existed, 
the  object  of  which  was,  it  seems,  to  prevent  and  punish  cer- 
tain crimes,  such  as  theft  and  the  practice  of  magic  arts.  If 
we  may  rely  on  the  accounts  of  travellers,  there  maybe  found 
among  the  tribes  to  the  south  of  the  Gambia  all  sorts  of  poli- 
ties, democratic  and  monarchic,  oligarchic  republics,  a  mili- 
tary despotism,  and  others  still  under  a  kind  of  priestly  gov- 
ernment. Among  the  negroes  converted  to  Mohammedan- 
ism a  description  of  feudalism  is  general. 

The  Kroomen  or  Grebos  have  a  pure  patriarchal  system. 
In   every  family  or   sept  a  patriarch  is    to  be 

The  Kroomen.  .  . 

found,  in  whose  hands  every  male  deposits  a 
part  of  his  property,  which  thus  constitutes  a  fund,  out  of 
which  he,  as  the  responsible  family  head,  defrays  the  expenses, 
pays  fines  and  the  like.  The  members  of  his  family  are  so 
far  under  his  control,  that  he  can  send  them  on  journeys, 
hire  them  as  sailors  to  captains  of  European  vessels,  and  re- 
ceive from  them  a  part  of  their  earnings  for  the  common 
fund.  The  family,  in  short,  form  a  community  under  his  gov- 
ernment. The  patriarchs  constitute  a  council  of  elders  to 
whom  the  management  of  all  political  affairs  is  committed, 
but  the  men  of  the  tribe  exercise  the  legislative  power  with 
the  elders  for  their  advisers.     A  chief  patriarch  and  a  head- 


EARLIEST   INSTITUTIONS.  449 

priest  are  presidents  of  the  council  ;  these,  with  the  president 
of  the  assembly  and  the  general,  are  the  four  principal  officers 
of  the  tribe.  Another  account  speaks  of  the  people  as  di 
vided  into  three  parts,  the  elders  as  above,  the  warriors,  and 
the  young  men.  Among  the  Kroomen  the  soil  is  common 
property,  but  the  tiller  and  his  descendants,  as  long  as  they 
cultivate  it,  have  the  usufruct.     (Comp.  §  138,  supra.) 

These  examples  may  serve  to  show  the  variety  and  appar- 
ent want  of  antiquity  in  the  political  institutions  of  one  of 
the  most  flexible  races  in  the  world.  It  would  not  be  strange 
if  the  patriarchal  communities  of  the  Kroomen  were  not  of 
very  ancient  origin.* 

The  Kaffres  and  other  cognate  tribes,  reaching  obliquely 
across  the   African  continent   from  the  land  of 

Kaffres. 

the  Zulus  in  the  south  through  thirty  degrees 
of  latitude,  to  those  who  speak  the  M'pongwe  language  on 
the  western  coast,  resemble  the  negroes  with  some  differences. 
They  have  adhered  to  what  we  must  suppose  to  be  their  earli- 
est institutions  far  more  than  the  negroes  of  the  middle, 
northern  and  western  parts  of  the  continent.  Among  them  a 
patriarchal  system  obtains,  interrupted  by  the  frequent  at- 
tempts of  Zulu  chiefs  in  modern  times  to  gain  large  territories 
by  conquest.  The  sons  build  their  kraals  near  that  of  their 
fathers  ;  the  poor  put  themselves  under  the  protection  of  the 
wealthy  as  his  children — becoming  thus  incorporated  into  a 
family.  The  tribes  are  only  expansions  of  families.  The 
rank  of  tribes  and  chieftains  must  be  explained  by  traditions 
of  nearness  of  blood  to  a  remote  ancestor.  The  feeling  of 
blood-relationship  being  strong,  the  hereditary  chieftain  finds 
ready  obedience  to  commands  conformed  to  old  customs, 
but  meets  with  resistance  when  he  violates  ancient  usage. 
There  are  differences,  however,  in  the  estimation  of  the 
chieftain  in  different  parts  of  the  Kaffre  race.  Among  the 
Betyuanas  they  have  less  power  than  among  the  more  south- 

*  For  tolerably  full  accounts  of  the  political  institutions  among 
the  negroes  and  other  African  tribes,  see  Waitz's  Anthropol.,  ii.,  p. 
12S  onw.,  which  I  have  freely  used. 
29 


450  POLITICAL   SCIENCE. 

ern  members  of  the  race.  The  Bassutos  put  a  check  on  their 
chieftains  as  well  in  every  tribe  as  in  all  inferior  divisions 
of  the  nation,  by  associating  with  them  two  or  three  council- 
lors. The  chieftains  of  the  people  called  by  this  name,  give 
lands  to  those  who  are  under  their  protection  and  receive  from 
them  tribute,  but  the  protected  persons  may  leave  their  lords 
and  the  lands  at  will. 

$   H7- 

The  inhabitants  of  the  Polynesian  islands,  belonging  to  the 

Polynesian  govern-  Malay  race,  although  for  ages  separated  from 
ments-  one  another,  seem  to  have  had  a  general  same- 

ness in  their  political  institutions  until  the  visits  of  European 
ships  and  the  teachings  of  missionaries  brought  the  spirit  of 
change  into  some  of  them.  Everywhere  there  is  an  upper 
class  and  a  class  of  the  common  people,  and  in  most  of  the 
groups  a  third,  intermediate  class,  the  owners  of  land,  who, 
however,  do  not  seem  to  exist  in  Hawaii  and  New  Zealand. 
Captives  taken  in  war  and  reduced  to  slavery  may  be  ranked 
as  a  fourth.  Quite  common  is  a  relation  like  that  of  feudal 
chiefs  to  their  vassals,  the  chiefs  being  all  equal  among  them- 
selves. A  centralized  government  is  also  found  on  Hawaii, 
Tahiti  and  Tonga.  The  separation  between  the  upper  class, 
or  nobles,  and  the  common  people,  was  most  marked  in  Samoa 
and  New  Zealand  ;  and  there  is  reason  to  believe  that  the 
nobles  established  their  superiority  by  having  the  offices  of 
religion  in  their  hands.  All  the  power,  all  the  property  be- 
longed to  them  in  the  latter  island,  and  the  people  were  with- 
out recognized  rights  beneath  their  sway.  Samoa  has  had  a 
patriarchal  constitution,  under  which  the  nobility  chose  ahead 
of  the  family  to  which  they  belonged  ;  and  the  heads  of  the 
families  chose  a  chief  of  the  village  in  which  they  resided. 
The  chief  of  the  district,  again,  was  elected  from  among  the 
heads  of  the  villages.  Several  of  these  heads  of  districts  are 
spoken  of  as  having  had  an  authority  which  extended  over  all 
the  group  of  islands.  The  relation  of  these  ranks  of  chieftains 
is  conceived  of  after  the  manner  of  the  patriarchal  age,  as 
that  of  the  father  towards  his  children.     A  village,  for  instance, 


EARLIEST    INSTITUTIONS  45  I 

without  a  chief,  would  be  as  a  family  without  the  protection 
of  a  parent.  The  chieftain  had  no  uncontrolled  power,  but 
in  every  village  and  district  there  were  assemblies  which  were 
convoked  by  the  principal  chief;  or,  if  he  neglected  to  send 
out  summonses,  were  gathered  without  his  intervention.  On 
the  whole,  the  power  of  the  headmen  is  small.  The  lands  are 
common  property  of  the  family,  and  the  head  of  the  family 
alone  can  sell  them.  If  he  should  act  against  the  will  of  the 
family,  he  would  lose  his  place. 

In  New  Zealand,  when  it  was  first  known  to  Europeans,  the 
population  was  divided  among  a  number  of 
tribes  which  had  no  connection  with  one  an- 
other. In  this  respect,  says  Ellis  (hi.,  343,  of  his  Polynes. 
Researches),  their  system  corresponds  with  that  which  prevails 
in  the  Marquesas,  where  right  is  unknown,  and  no  law  ac- 
knowledged but  that  of  power.  But  others  speak  of  a  chief- 
tain whose  sway  extended  over  a  number  of  tribes,  each  of 
which  had  also  its  own  special  ruler.  The  reconciliation  of 
these  opinions  is  found  in  the  fact  of  a  change  between  the 
times  when  larger  unions  than  the  single  tribe  were  known, 
and  the  times  when  the  modern  system  began  to  invest  the 
single  tribe  alone  with  political  importance.  The  people 
formed  two  classes  only,  the  free  and  the  slaves  who  had  been 
taken  in  war.  An  earlier  noble  class  had,  at  the  time  of  the 
discovery  of  New  Zealand,  lost  a  large  part  of  their  political 
importance,  retaining  respect  chiefly  on  account  of  their  re- 
ligious character.  The  maori,  or  heads  of  the  tribes  at  that 
time,  seem  to  have  been  similar  to  those  already  described, 
chiefs  of  families  and  of  districts  or  tribes,  of  which  one  hun- 
dred and  four  are  said  to  have  lived  on  the  north  island.  The 
constitution  of  New  Zealand  has  been  called  a  sort  of  patri- 
archal democracy,  and  again,  an  aristocracy  with  a  feudal 
character.  The  myths  point  back  to  an  aristocratic  despot- 
ism as  the  old  political  form  under  which,  in  remote  ages,  the 
island  was  settled.* 

*  Comp.  Gerland,   the  continuator  of  Waitz,  Anthropol.,  vi.,   165 
onward,  on  whom  I  have  principally  relied. 


452  POLITICAL  SCIENCE. 

$  148. 
Among  the  nomads  of  the  world  the  Bedaweens,  perhaps, 
exhibit  to  us  the  most  genuine  traits  of  early 
patriarchal  life,  although  even  among  them  the 
Koran,  and  intercourse  with  strangers,  must  have  introduced 
some  novelties  and  changes.  We  find  among  them  some 
very  old  usages,  which  are  known  also  to  nations  of  other 
races,  as  the  jus  leviratus,  blood-revenge,  which  composition 
for  homicide  accompanies,  with  the  practice  of  plundering 
travellers  (comp.  Jer.,  iii.,  2),  which  must  have  grown  up 
after  the  rise  of  overland  trade.  The  political  unit  is  the  tribe, 
consisting  of  a  number  of  families  dwelling  in  tents,  and  form- 
ing a  body  consisting  either  of  one  encampment  or  of  a  num- 
ber of  tents  near  one  another,  occupied  by  relatives,  and  by 
weaker  families,  who  are  in  some  sort  under  the  protection  of 
the  more  powerful.  At  the  head  of  the  tribes  is  the  sheik, 
so  called  originally  from  his  age  (like  presbyter,  senior,  dem- 
ogeron),  who  has,  in  modern  times,  nothing  more,  in  peace, 
than  advisory  power,  and  the  office  of  executing  the  resolu- 
tions of  the  heads  of  families.  In  war  he  leads  the  host ;  he 
also  presides  in  the  deliberations  relating  to  war  and  peace, 
and  to  him  the  entertainment  of  distinguished  strangers 
belongs.  What  must  have  been  the  prevailing  usage  of  the 
earliest  patriarchal  age,  the  right  of  succession  of  the  oldest 
son  in  the  office  of  head  of  the  family,  is  by  no  means  a  rigid 
law  among  the  Bedaween.  If  the  son  is  thought  to  be  unfit 
for  the  office,  another  is  selected  in  preference.  Sometimes 
tribes  divide  on  this  point  into  two.  And  during  his  lifetime, 
if  the  sheikh  shows  any  special  incapacity,  the  tribe  does  not 
hesitate  to  depose  him. 

On  the  southern  coast  of  Arabia  (according  to  Wellsted,  i., 
287,  cited  by  Klemm,  iv.,  187),  the  Dijabi,  an 

And  other  Arabs.  .       .  /•    -n      1  i  •     •  1      1    • 

association  of  Bedaween,  are  divided  into  seven 
parts  or  tribes,  each  of  which  has  a  chief  called  abit,  father; 
but  there  is  no  common  sheik  or  sultan.  The  seven  chiefs 
form  a  deliberative  and    executive   council  ;  they  sometimes 


EARLIEST  INSTITUTIONS.  453 

receive  their  power  from  their  fathers,  sometimes  are  elected 
on  account  of  their  superior  abilities,  and  are  responsible  for 
all  the  thefts  committed  in  their  district,  even  to  the  point  of 
giving  restitution  themselves,  if  the  thief  has  no  property. 

The  Kady  or  judge  has  the  special  office  of  settling  dis- 
putes, although  the  sheik  also  can  act  as  an  arbitrator  in  this  • 
capacity  ;  he  is  chosen  not  by  the  sheik  but  by  the  tribe,  and 
is  paid  for  his  decision  by  the  contending  parties.  The  par- 
ties or  either  of  them,  if  not  satisfied  with  the  judgment, 
can  appeal  to  other  Kadies.  A  portion  of  the  Bedaween 
have  a  judge  of  appeal  or  higher  instance,  who,  if  he  fails  to 
bring  the  case  to  a  conclusion  by  the  ordinary  methods,  re- 
sorts to  an  ordeal,  which  consists  in  licking  with  the  tongue  a 
red-hot  spoon.  If  the  accused  does  this  without  injury,  he  is 
held  to  be  innocent. 

Without  a  written  code,  except  so  far  as  the  Koran  is 
their  guide,  they  have  regular  fines  for  specific  offences. 
Blood-revenge  is  made  the  duty  of  certain  relatives,  and  ex- 
tends to  a  part  only  of  the  descendants  of  a  common  ances- 
tor. Composition  for  homicide  may  be  accepted,  but  the 
tribes  that  adhere  closest  to  their  original  usages,  know  little 
of  it.  The  criminal  flees  to  another  tribe  until  his  friends  can 
make  a  bargain  for  his  safety,  or  perhaps  will  remain  for  life 
a  member  of  the  tribe  which  has  given  him  shelter. 

§    149- 
The  power  of  religious  ideas  to  unify  a  collection  of  tribes 
Early  government  anc*   even   of  nations,  which  is  seen  in  the  his- 

of  the  Hebrews.  tojy  of  j^^   of  Tj.^    Qf   the   Arabs   under    Ma_ 

hornet,  is  shown  in  modern  times  by  the  state  of  the  Wecha- 
bites  or  Wahhabites,  founded  by  Mohamed  Ibn  Saoud,  who 
after  his  conquests  established  sheiks  in  all  the  conquered  dis- 
tricts, over  which  he  was  supreme. 

If  Ave  go  back  to  the  period  of  the  history  of  Israel,  when 
the  tribes  lived  side  by  side,  with  no  bond  of  union  besides  a 
common  religion,  common  traditions  and  similar  usages  of 
life,  we  shall  find  that  their  political  organism  was  much  like 


454  POLITICAL   SCIENCE. 

that  of  the  Bedaween,  only  more  compact.  The  tribes, 
equal  in  rights,  although  Judah  and  Ephraim  had  a  sort  of 
pre-eminence,  were  divided  into  families  or  clans  (mishpach- 
otli)  ;  these  again  in  some  instances  into  subordinate  clans, 
such  as  those  of  the  tribe  of  Manasseh  (Numbers,  xxvi., 
29) ;  these  or  the  main  tribe  into  houses,  and  these  again  into 
separate  families.  Each  tribe  had  its  leaders,  who  are  called 
in  Numbers,  i.,  16,  heads  of  the  thousands  of  Israel,  and  else- 
where princes  of  the  tribes  or  of  the  assembly.  The  men 
who  took  the  census  with  Moses  and  Aaron,  and  who  after- 
wards appear  in  the  book  referred  to  at  the  head  of  their 
tribes,  are  selected  by  divine  command.  How  these  officers, 
and  others,  to  whom  inferior  divisions  of  the  people  were  en- 
trusted, received  their  appointments  afterwards,  we  do  not 
find  distinctly  recorded,  although  they  would  naturally  be 
taken  out  of  the  number  of  the  heads  of  houses,  or  patri- 
archal chiefs.  In  times  of  danger,  such  as  the  book  of  Judges 
records,  extraordinary  magistrates  are  brought  forward,  who 
form  temporary  unions  of  a  portion  of  the  tribes  most  ex- 
posed to  danger  ;  and  after  effecting  deliverance  from  the 
enemy,  are,  like  Joshua,  dictators  for  life.  Their  office  of 
judges  is  especially  brought  forward  in  their  name  shophctim, 
which  corresponds  with  the  suffetes  of  the  Carthaginians. 
After  the  death  of  one  of  these  judges  and  rulers  an  interval 
of  peace  may  have  succeeded,  in  which  there  was  no  common 
government,  and  the  old  loose  juxtaposition  of  the  tribes 
went  on.  A  little  later  we  find  lifelong  shophetim  of  priestly 
extraction,  Eli  and  Samuel,  the  latter  of  whom  had  much  to 
do  with  the  culture  and  religious  life  of  the  people.  The 
necessities  of  war  now  demanded  a  warrior  at  the  head  of  the 
tribes,  and  the  monarchy  then  established  continued  as  long 
as  the  Hebrews  were  an  independent  people.  Under  the  mon- 
archy, the  tribal  system  was  weakened  by  a  system  of  officers 
appointed  by  the  will  of  the  king. 

The  headmen  of  the  tribes  and  of  minor  portions  of  the 
people  seem  to  have  had  at  first  the  duties  of  police  and  of 
administering  justice  in  their  hands.     The  elders  of  the  tribe 


EARLIEST   INSTITUTIONS.  455 

or  the  city  are  executive  officers  and  representatives  of  the 
people  in  public  affairs.  In  Deuteronomy,  xvi.,  1 8,  we  read 
"judges  and  officers  shalt  thou  make  thee  in  all  thy  gates," 
a  command  which  points  to  local  courts  ;  and  since  the  elders 
of  a  community  or  town  are  spoken  of  elsewhere  as  concerned 
in  the  administration  of  justice,  we  may  safely  say  that  the 
courts  consisted  of  these  elders  (aldermen)  or  a  detachment 
of  them.  Where  Levites  resided,  they  might  share  this  of- 
fice with  the  elders  of  the  place  ;  and  to  them  mainly  un- 
der the  kings  belonged  this  part  of  public  business,  on  ac- 
count of  their  acquaintance  with  civil  and  religious  usage  and 
law.  Appeals  "  to  "  the  priests  and  Levites  and  to  the  judge 
that  shall  be  in  those  days,  are  spoken  of  in  Deut.,  xvii.,8-13. 

The  conquest  by  the  Israelites  of  numerous  cities  of  Ca- 
naan, and  their  favorable  position  near  industrious  commu- 
nities, as  well  as  near  important  routes  of  intercourse,  must 
have  tended  to  the  laying  aside  of  a  pastoral  life  in  a  measure, 
and  to  a  division  of  labor.  Political  changes  now  become 
easy.  It  is  interesting  to  notice  that  houses  in  walled  cities 
among  the  Hebrews,  if  not  redeemed  within  one  year,  passed 
over  to  the  purchaser  in  perpetuity,  while  houses  in  unwalled 
places  went  with  the  land,  "  being  counted  as  the  field  of  the 
country"  (Lev.,  xxv.,  29-31). 

The  method  relied  on  for  securing  permanence  of  families 
and  homogeneous  population  in  the  towns  and  districts  of 
the  country,  was  that  the  land  could  not  be  alienated  in  per- 
petuity, but  returned  to  the  family  at  least  after  forty-nine 
years.  The  laws  and  institutions  of  the  tribes  were  conserved 
by  the  aid  especially  of  one  of  the  tribes  dispersed  through 
the  country,  to  the  members  of  which  religious  usages  and 
the  religious  instruction  of  the  people  were  committed. 

*    150. 
The  separation  of  a  people  into  tribes  and  smaller  divisions 
Tribes  in  other  seems  to  have  been  the  natural  course  of  things 
early  nat.ons.  jn   aj|   tjie  nations   of  antiquity  known    to    us. 

The  tribes  live  side  by  side,  now  at  peace,  now  quarrelling, 


456  POLITICAL   SCIENCE. 

never  united,  except  for  a  time  until  some  religious  faith 
spreads  over  them,  or  they  are  conquered  from  within  or 
from  without.  Thus,  to  use  the  words  of  Duncker  (Gesch. 
der  Arier,  p.  18),  in  the  Rigveda,  "  the  people  appear  divided 
into  little  tribes,  at  whose  head  princes  stand  called  Vicpali, 
that  is  rulers  of  tribes  or  Gopa — a  word  which  originally  signi- 
fies cowherd,  protector  of  cows.  The  quarrels  of  the  tribes 
consisted  evidently  in  expeditions  for  booty  and  plunder  ; 
they  drive  off  each  other's  herds  and  fight  for  good  pastures." 
The  Persians,  according  to  Xenophon,  were  divided  into 
twelve  tribes  (Cyri  inst. ,  i.,  2,  5).  The  Medes,  according  to 
Herodotus  (i.,  96),  whatever  may  be  thought  of  his  account, 
lived  not  in  cities  like  the  Greeks,  but  in  villages  or  hamlets, 
when  De'ioces  made  himself  their  king,  aided  by  the  prevail- 
ing lawlessness.  The  same  author  speaks  of  the  Medes  as 
divided  into  six  tribes,  one  of  whom  was  the  Magi.  The  Edo- 
mites  are  mentioned  in  the  earliest  Hebrew  records  (Gen., 
ch.  xxxvi.)  as  under  the  government  of  chieftains,  of  whom  a 
number  are  mentioned  "  according  to  their  families,  after 
their  places,  by  their  names,"  where  families  means  a  tribe  or 
a  division  of  one.  The  "  kings  "  of  Edom  seem  to  have  been 
elected  by  the  heads  of  tribes  (Isaiah  xxxiv.,  12). 

The  divisions  of  the  Greeks  and  Romans  in  their  early  his- 
Tribes  and  clans  tory  correspond  tolerably  well  with  those  of  the 
in  Greece.  more  eastern  nations,  whether  of  the  Semitic  or 

the  Aryan  race.  Only  the  tribes  (<f>v\a,L,  tribus)  are  of  prin- 
cipal importance  among  the  Greeks,  while  the  clan  or  sept 
(yevos,  gens)  is,  in  their  political  development,  of  but  little 
moment,  but  among  the  Romans  is  of  very  great.  We  see  the 
difference  in  this  respect  in  their  methods  of  describing  indi- 
vidual persons.  To  the  Greek  it  was  enough  to  give  the  name 
of  the  person  and  of  his  father,  as  Alcibiades,  the  son  of  Clei- 
nias,  Pericles,  the  son  of  Xanthippus,  but  the  Roman  Gentile 
name  was  always  prominent,  as  Fabius,  Furius,  Julius,  to- 
gether with  the  family  which  formed  one  of  the  branches  of 
the  gens,  and  the  name  of  the  individual  himself,  to  which 
others  might  be  added  on  special  accounts,  as  Publius  Corne- 


EARLIEST   INSTITUTIONS.  457 

lius  Sclpio  Africanus.  To  these  the  names  of  ancestors 
were  added  in  the  fasti  for  three  or  four  generations.  This  is 
connected  with  the  strong  family  feeling  of  the  well-born 
Romans,  and  this  again  rests  on  the  closeness  of  the  parental 
relation  and  the  greatness  of  the  father's  power,  on  which  the 
institutions  of  Rome  may  be  said  to  have  been  founded. 

The  tribes  which  have  passed  under  our  examination  have 
been,  for  the  most  part,  groups  descended  from  a  common 
ancestor,  and  probably  diffused  from  some  common  point 
over  the  adjoining  territory.  The  occupation  of  ancestral 
territory  was  secured  in  one  case,  at  least,  by  the  usage  or 
law  of  reversibility,  at  certain  epochs,  to  the  family  that  had 
formerly  owned  it.  If  such  connection  existed  in  later  Greece 
between  the  land  and  the  families  to  which  it  was  allotted,  it 
does  not  appear  that  the  territory  was  so  distributed  that  the 
tribes  were  confined  by  local  boundaries.  The  lots  or  portions 
of  land  assigned,  according  to  the  received  account,  to  the 
Spartans  at  the  first,  were  equal,  indivisible,  and  inalienable, 
although  the  old  institutions  touching  property  gradually  fell 
into  decay  ;  but  the  tribes,  which  were  at  least  three  in  num- 
ber, as  in  the  Doric  states,  formed  no  important  part  of  the 
new  constitution  for  a  long  series  of  years  after  the  Doric  in- 
vasion of  Peloponnesus.*  The  little  that  is  known  of  the  obae, 
which  answer  to  the  phratrice  elsewhere  found,  is  a  proof  of 
their  small  influence  in  the  Spartan  constitution.  The  infe- 
rior orders  of  society  in  Sparta  were  determined  by  the  events 
of  the  conquest.  Those  who  submitted  first  formed  a  pro- 
tected class  without  full  Spartan  rights,  and,  indeed,  had  no 
share  in  public  affairs.  The  Helots,  consisting  of  such  as  hav- 
ing offered  a  stout  resistance  to  the  invaders,  became  serfs,  the 
property  of  the  community. 

A  change  of  society  is  indicated  in  Greece  by  changes   in 

*  Comp.  Schomann,  Or.  Alt.,  i.,  pp.  132,  21 1.  The  tribes  in  Sicyon 
were  four,  one  being  added  for  such  of  the  earlier  inhabitants  as 
were  admitted  into  the  state.  At  Argos,  also  a  fourth  tribe,  com- 
posed of  Achaeans,  was  added  to  the  three  Doric  tribes.  Comp. 
M idler,  Dorer,  part  ii.,  No.  5. 


453  POLITICAL  SCIENCE. 

the  original  tribes.  Sometimes  local  or  topical  divisions  were 
substituted  for  such  as  depended  on  common  ancestry,  real 
or  mythical.  Sometimes  the  old  significance  of  the  tribes 
faded  out,  and  they  were  merely  political  divisions,  with  no 
reference  to  place  or  ancestry.  Sometimes,  as  among  a  num- 
ber of  states  belonging  to  the  Ionic  race,  the  names  of  the 
earliest  tribes  indicate  a  caste-like  division  of  the  inhabitants, 
which  is  scarcely  credible.  At  Athens  we  find  a  mention  of 
tribes  pertaining  to  mythic  times  which  are  partly  local ;  but 
more  distinct  are  the  four  later  caste-like  tribes,  three  of  which 
must  denote  a  heavy-armed'  class,  goatherds,  and  workmen. 
Of  the  absurdity  here  involved,  that  the  heavy-armed  class 
should  occupy  a  district  by  itself  and  the  workmen  another, 
an  explanation  is  given  that  the  names  are  derived  from  the 
prevailing  population  in  a  district ;  for  that  they  were  local  is  a 
pretty  general  opinion.  Then  the  remaining  tribe  offers 
peculiar  difficulties  of  its  own.  The  tradition  found  in  Plu- 
tarch's life  of  Theseus  (§  25),  that  the  lawgiver  first  separated 
society  into  the  three  classes  of  nobles  (eupatridce),  land- 
owners and  handicraftsmen,  can  mean  no  more  than  that 
these  orders  were  fixed  parts  of  the  community  at  that  remote 
time.  The  four  tribes  were  divided  each  into  phratriae,  clans 
or  brotherhoods,  and  these  again  into  gentes  (yevrf),  thirty 
in  number,  for  each  tribe.  A  division  of  the  tribes  into  thirds 
(trittyes)  and  naucrarice,  twelve  to  each  third  of  a  tribe,  has 
no  claim  to  high  antiquity,  and  was  used  for  convenience  in 
taxation  and  military  arrangements. 

The  phratriae  are,  without  question,  very  ancient.  In  the 
Iliad  (ii.,  362),  Nestor  gives  the  advice  to  divide  the  host  by 
tribes,  of  which  the  Rhodians  are  arranged  into  three  (ii., 
668,  655),  and  into  brotherhoods  {Kara  $p?/Tpa9).  The  phra- 
triae in  the  historic  times  of  Athens — for  they  always  subsisted 
as  a  division  of  the  people,  even  after  the  artificial  tribes  of 
Chisthenes  had  taken  the  places  of  the  older  tribes,  had  in 
later  historic  times  more  jural  than  political  importance.  It 
was  a  rule  for  a  legitimate,  native-born  citizen  to  be  inscribed 
on  the  register  of  these  bodies  in  one  of  the  stated  assemblies, 


EARLIEST   INSTITUTIONS.  459 

when  the  father  swore  that  his  child  was  born  in  lawful 
wedlock,  made  an  offering  to  the  tutelary  divinity  of  the 
phratria.%  and  gave  a  feast  to  his  brethren.  Adoption  was 
legal  only  under  similar  formalities,  and  newly  married  men 
introduced  their  wives  to  the  phratores  with  like  festivities. 
Perhaps,  also,  the  sons  of  heiresses  and  orphans  were  required 
to  have  their  jural  capacity  examined  in  their  phratriae  before 
they  could  manage  their  property.  These  bodies  were  thus 
protectors  of  the  rights  of  family  and  kindred  ;  they  had  their 
ancestral  gods  ;  and  the  feast  of  Apaturia,  which  was  common 
to  all  the  Ionic  race,  belonged  especially  to  them.  It  is  in- 
teresting to  find  that  the  phratriae  were  concerned,  according 
to  very  ancient  laws,  in  the  blood-revenge  then  usual,  and  in 
remitting  the  punishment  of  the  man-slayer.  (Demosth.  c. 
Macartat.,  1069.) 

The  phratriae  and  the  later  local  districts  of  Athens,  the 
demi,  are  of  much  more  public  importance  than  the  yevij  or 
family  communities,  which  all  had  a  common  family  worship, 
and  stood  in  the  order  of  succession  according  to  their  rela- 
tionship within  certain  limits.  They  probably  had  registers 
like  the  phratriae,  but  little  is  known  of  them.* 

§  151. 
An  ancient  tradition  of  Rome  divides  the  new  inhabitants 
into  three  tribes,  a  frequent  number  to  which 

Tribes  and  gentes  1 

inRome.  we  are  indebted  for  the  word  tribe  itself.     These 

three  tribes,  about  the  meaning  of  whose  names  the  Latin 
writers  are  in  the  dark  or  follow  very  questionable  etymolo- 
gies, may  have  belonged  to  three  different  nationalities — the 
Romans  to  a  Latin,  the  Tities  to  a  Sabine,  and  the  Luceres  to 
an  Etruscan  origin  ;f  or  the  city  may  have  arisen  out  of  a  joint 
settlement  of  Latin  and  Sabine  elements  ;  the  former  including 
two  of  the  tribes,  the  latter  only  one.     This  joint  settlement 

*Comp.  for  Athens,  Schom.,  11.  s.,  i.,  319,  365,  K.  F.  Hermann, 
Gr.  Antiq.,  i.,  §§  99-101,  and  Meyer  de  gentil.  Att. 

fSo  Schwegler  Rom.  Gesch.,  i.,  504  onw.  But  see  Mommsen,  B. 
i.,  ch.  4,  5. 


460  POLITICAL  SCIENCE. 

Mommsen  compares  to  the  syncecismus  of  the  Greeks,  when 
two  or  more  villages  united  to  form  a  walled  town,  or  at  least 
had  one  senate-house  and  place  of  judgment.  The  tribes  had 
each  a  tribe-master  or  tribune;  the  ten  curiae  which  composed 
them,  a  carlo  each;  and  consisted  each  of  ten  gentes.  The 
curia  had  its  common  sacred  rites,  its  especial  Jiamen,  or 
priest,  its  presiding  divinity,  and  the  thirty  together  repre- 
sented the  original  people  of  Rome, — those  out  of  whose 
number  the  senate  was  taken,  and  who  gave  their  votes  in 
the  comitia  of  the  curiae. 

There  are  authorities  for  regarding  the  Attic  jevos,  answer- 
ing to  the  Roman  gens,  as  not  related  by  birth  nor  of  the 
same  blood,  but  so  called  from  the  religious  rites  which 
bound  them  together.*  This  seems  to  me  to  be  very  inconsis- 
tent with  other  facts.  They  were  called  6/j,oyd\aKT€<i  or  milk- 
brethren.  The  phratriae,  themselves,  to  which  the  gentes  or 
houses  belonged,  wear  evident  marks  of  blood-relationship. 
Niebuhr  had  the  same  view  of  the  Roman  gentes,  that  in  the 
institution  the  principle  of  a  common  descent  was  not  con- 
trolling, but  that  persons  having  different  ancestors  were 
united  together  under  a  common  Gentile  name.  So  Cicero 
conceived  of  the  matter,  but  Varro  regarded  them  as  a  blood- 
union.  This  latter  opinion  in  itself  is  far  more  probable, 
when  we  consider  the  extreme  closeness  of  the  family  tie,  and 
that  the  name  must  have  been  used  in  the  first  instance  to 
discriminate  between  those  who  had  different  ancestors.  We 
may  suppose  the  curies  to  be  artificial  political  divisions  in 
which  the  gentes  were  united  who  had  no  agnation  ;  but  the 
gentes  themselves  or  clans  were  the  communities  sprung  from 
a  common  ancestor,  who  lived  together  or  near  to  one  an- 
other; out  of  whose  junction,  as  Mommsen  justly  asserts, 
the  Roman  community  arose.  In  these  clans  there  were  al- 
ready different  classes  ;  those  who  recognized  each  other  as 
being  of  the  same  blood;  and  the  dependents  or  clients,  an 
inferior  class  but  higher  than  serfs,  who  cultivated  the  lands, 

*  See  the  authorities  in  Schvvegler,  i.,  p.  612. 


EARLIEST   INSTITUTIONS.  46 1 

were  called  by  the  same  name  with  the  original  members  of 
the  clan,  and  in  process  of  time  were  merged  among  the  ple- 
beians. The  clans  formed  the  original  nucleus,  to  which,  in 
various  ways,  plebeians  were  added, — men  without  member- 
ship in  a  clan,  exiles,  fugitives,  strangers  engaged  in  com- 
merce or  some  handicraft, — who  put  on,  to  a  degree,  the  forms 
of  the  old  patrician  relationships,  but  did  not  belong  to  the 
old  people  which  originated  the  family  spirit  of  the  Roman 
state.  The  gentes  or  clans  had  their  peculiar  sacred  rites, 
their  especial  objects  of  worship,  images  of  their  ancestors; 
and,  forming  an  upper  class,  for  a  long  time  controlled  the 
state 

§  152 
The  examination  of  the  communities  out  of  which  states 
Summary  in  regard  proper  have  grown  up,  may  be  concluded  by 

to  the  primeval  con-  m  # 

dition  of  mankind,     the  following  brief  summary  of  results. 

1.  All  the  divisions  of  early  society  rest,  for  their  basis,  on 
the  family  union.  Almost  everywhere  appear  traces  of  com- 
mon property,  of  a  time  when  the  land  was  thought  to  belong 
to  all,  and  when  there  was  no  division  by  inheritance. 

2.  There  was  little  need  of  any  other  state  of  things,  in  the 
nomadic  form  of  life  ;  and  the  community  feeling  would  con- 
tinue, when  that  condition  of  life  was  passing  over  into  the 
agricultural.  Cattle  even  then  could  be  pastured  together  on 
common  lands;  the  fields  might  be  tilled  in  succession  by  the 
heads  of  families  ;  but  in  the  course  of  time  there  could  not 
fail,  in  many  parts,  to  arise  separate  property  with  separate 
family  abodes.  This,  wherever  it  was  introduced,  denotes  a 
new  organization  of  society,  which  must  require  new  political 
forms,  sooner  or  later. 

3.  In  every  ramification  and  extension  of  a  community, 
some  government  or  magistracy  for  settling  disputes,  some 
council  and  head  in  war,  would  be  a  social  necessity  ;  and 
these  all  would  partake  more  or  less  of  the  patriarchal  and 
paternal  power. 

4.  A  common  language,  common  traditions,  the  same  re- 
ligious rites  and  faith,  would  be  bonds  of  union  within  certain 


462  POLITICAL   SCIENCE. 

tribes  and  in  certain  districts,  so  that  those  who  had  scarcely 
any  need  of  confederating  in  peace,  would  be  able  to  unite  in 
war. 

5.  With  the  exchange  of  commodities  cities  would  arise  ; 
and  these  might  become  the  centres  of  great  states  formed 
by  conquest,  which  states,  by  binding  together  large  terri- 
tories and  a  multitude  of  tribes,  did  an  essential  service  to 
mankind. 

6.  The  tribal  division  and  others  subordinate  to  it,  derived 
from  original  consanguinity,  appear  in  all  those  city-states  of 
the  world,  from  which  our  culture  is  mainly  derived.  Those 
who  were  united  by  blood  would  be  also  settled,  at  first,  with- 
in the  same  district  or  in  the  same  village. 

7.  Distinctions  of  classes  might  grow  up,  as  in  historical 
times,  from  conquest,  from  descent,  which  would  be  aided  by 
mythic  narratives  of  the  ancestors  of  certain  families,  and  by 
personal  qualities  of  leading  men  in  war  or  in  peace. 

8.  It  is  altogether  probable  that  each  of  the  races  which 
constitute  the  leading  divisions  of  mankind,  had  each  its  own 
traits  and  religion  before  they  formed  separate  communities 
and  entered  on  a  series  of  emigrations.  It  is  assumed  by 
Mr.  Fustel  de  Coulanges,  in  his  Cite  antique  (p.  138,  ed.  5), 
that  "the  gods  of  physical  nature"  were  later  objects  of 
worship  than  deceased  ancestors,  who  would  be  different  for 
different  tribes  and  clans.  Whatever  may  be  said  of  early 
worship  and  faith,  which  is  a  subject  lying  aside  from  our 
present  course  of  thought,  it  is  certain  that  the  whole  Aryan 
race  had  common  objects  of  worship  and  a  worship  of  nature 
before  they  left  their  original  home.  At  least  the  god  of  the 
clear  sky  and  the  daylight  belonged  to  the  religion  of  Greece, 
Rome,  Germany  and  Scandinavia,  as  well  as  to  that  of  India, 
and  was  superseded  as  a  principal  divinity  in  the  two  latter 
countries  and  probably  in  India  also.  It  is  natural,  when  a 
common  feeling  of  race  arises  in  a  part  of  the  world,  that  the 
leading  objects  of  worship  should  be  common  ;  but  it  was  not 
strange,  when  a  part  of  a  race  that  is  separated  from  the  rest 
gives  itself  to  a  certain  mode  of  life  more  than  before,  that  new 


EARLIEST   INSTITUTIONS.  463 

protecting  divinities  should  usurp  the  place  of  the  older  gods. 
We  must  regard  the  influence  of  religion  in  moulding  new 
societies  as  subordinate  to  the  causes  which  determine  the 
modes  of  life  and  divisions  of  a  people.  The  outer  world, 
the  needs  of  life,  the  necessary  unions,  are  positive  forces  ; 
religion  is  a  restraining  force. 

9.  Differences  of  religion,  mutual  fear  and  suspicion,  actu- 
al distances  with  difficulties  of  intercourse  caused  by  moun- 
tains and  rivers,  separated  mankind,  and  made  it  easier  for 
differences  of  dialect  to  arise  when  there  had  been  a  common 
language  before.  Every  separate  portion  of  a  race  developed 
itself  now  by  new  causes  as  well  from  within  itself  as  from 
changes  in  external  condition,  and  endless  varieties  of  men 
of  the  same  race  appear. 

10.  Conquest  now  mixed  races,  produced  political  unions 
of  different  peoples  against  their  will,  and  promoted  inter- 
course between  distant  points,  so  that  commerce,  industry, 
compact  settlements,  enlargement  of  knowledge,  would  be 
promoted  by  this  violent  method.  But  city-life,  although  to 
a  degree  following  conquests,  was  not  originated  by  con- 
quests. 

11.  Amid  all  the  causes  of  difference  in  the  human  race,  it 
is  remarkable  to  how  great  a  degree  there  has  been  a  uni- 
formity at  the  same  stage  of  civilization,  in  institutions,  even 
in  some  which  are  now  regarded  as  unnatural  ;  and  how  gov- 
ernment, especially  in  its  varieties  and  changes,  represents 
changes  in  society  of  which  it  is  full  as  much  the  product  as 
the  author. 

§  153- 
We  now  have  reached  the  stage  of  development  when  the 
building  of  cities  introduces   an   era  in  the  his- 

Rise  of  cities.  °  . 

tory  of  political  institutions.  Cities  flourished 
and  abounded  in  Palestine,  wherever  the  Phoenicians  and 
Greeks  dwelt,  in  middle  and  southern  Italy,  to  say  nothing 
of  more  eastern  parts  as  India  and  China.  The  notion  of  a 
city  implied  a  fulness  or  a  crowd  of  people  and  fortifications 


464  POLITICAL  SCIENCE. 

for  security  against  enemies.*  In  the  Hebrew  scriptures,  the 
walls,  gates,  and  bars  of  cities  are  mentioned  more  than  once. 
In  the  dominions  of  Og,  king  of  Bashan,  there  were  three-score 
fenced  cities,  some  of  which  now  excite  the  wonder  of  travel- 
lers. These  walled  places  are  expressly  distinguished  in  the 
account  of  the  conquest  from  "  unwallcd  towns  a  great 
many"  (Deut.,  iii.,  4,  5)-  In  the  book  of  Joshua  we  read  of 
the  conquest  of  thirty-one  city  kings  (ch.  xii.),  and  the  walls 
of  several  of  these  places  are  spoken  of  (vi.,  20,  vii.,  5).  In 
Greece  before  the  composition  of  the  Homeric  poems,  walled 
towns  appear,  many  of  them  in  the  "catalogue"  (Iliad,  ii.), 
and  Crete  is  the  land  with  the  hundred  cities  (II.,  ii.,  649). 
The  fortifications  of  Troy,  of  Gortys,  of  Tiryns  and  others 
are  spoken  of  by  Homer.  Those  of  Tiryns  are  now  among 
the  oldest  remains  of  Greek  antiquity.  Mycenae  still  shows 
ruins  of  very  great  age  ;  and  indeed  it  may  be  said,  in  general, 
that  all  the  towns  which  controlled  the  surrounding  country, 
and  where  the  headmen  of  the  state  dwelt,  had  the  protection 
of  walls  if  not  of  fosses.  In  Italy  the  same  usage  had  spread 
itself  before  the  foundation  of  Rome,  if  the  antiquity  of  ex- 
isting ruins  has  been  correctly  estimated. 

But  why  was  this  town  life  adopted  by  Semitic  and  Indo- 
European  nations  on  the  Mediterranean  to  so  great  an  extent  ? 
As  long  as  pastoral  pursuits  mainly  occupied  the  inhabitants 
of  a  territory,  there  was  little  motive  for  walls  of  defence  ;  but 
when  agriculture  was  the  principal  emplo3rment,  or  at  least 
divided  the  labors  of  a  people  with  the  care  of  flocks,  there 
was  need  of  places  of  protection  against  marauders,  where 
women  and  children  could  be  sheltered,  grain  could  be  stored, 
and  flocks  shut  in  on  the  alarm  of  an  invading  force.     Of  the 

*  The  Hebrew  name  for  city,  seen  in  the  name  Kirjath-Arba,  etc. 
denoted  either  something  framed  or  built,  or  something  fortified. 
Another  word  of  wider  sense,  vs,  may  have  signified  at  first  a 
"place  of  watch  or  guard."  (Gesen.)  71-0X19  and  pur  in  Sanskrit,  ac- 
cording to  G.  Curtius,  belong  to  roots  denoting  fulness.  Urbs  has 
been  connected  with  orbis,  as  if  at  first  it  was  the  circuit  of  the  walls  ; 
and  oppidum  has  been  derived  from  ob  and  pedum,  as  if  it  denoted 
guarding  the  field.     (Curtius,  p.  84.) 


EARLIEST   INSTITUTIONS.  465 

Cyclopean  remains  in  Italy,  some  seem  to  have  been  not 
permanent  abodes,  but  refuges  of  this  description.  The  ne- 
cessities of  protection  against  hostile  incursions  ere  long  made 
these  walled  places  a  residence  for  an  upper  class,  who  culti- 
vated their  grounds  by  means  of  slaves  or  clients  ;  then  arti- 
ficers, merchants  and  others  were  added  ;  the  cities  became 
the  seats  of  the  religious  rites  of  the  district ;  and  last  of  all 
a  number  of  unwalled  villages  were  artificially  united  into  a 
large  town  for  political  and  military  purposes.  In  this  way 
was  Megalopolis  in  Arcadia  founded  in  historic  times,  to  be 
a  bulwark  against  Spartan  control  over  Arcadia. 

If  these  thoughts  in  regard  to  the  first  reasons  for  the 
foundations  of  cities  should  be  deemed  to  have  any  justice  in 
them,  it  will  follow  that  cities  were  built  for  present  wants, 
and  not  with  the  foresight  of  eome  further  needs  of  a  more  civ- 
ilized condition.  Then  the  utility  of  defended  places  brought 
men  together,  and  while  the  same  divisions  of  society  re- 
mained as  before, — the  tribes,  and  clans,  and  families, — 
the  action  of  the  city  dwellers  on  each  other,  together  with 
the  city's  adaptation  to  become  the  seat  of  power  for  the 
king  and  the  well-born,  by  producing  alertness,  inventiveness, 
increase  of  knowledge,  gave  to  it  a  superiority  which  extend- 
ed in  time  to  the  political  sphere, and  secured  to  the  city  the 
superiority  over  the  country.  The  city-life,  however,  was  not 
universal,  nor  were  the  cities  always  fortified.  Thus  Sparta 
continued  without  walls  until  the  Macedonian  period. 
30 


CHAPTER  II. 

FORMS   OF   GOVERNMENT. 

$    154. 

FROM  this  brief  sketch  of  the  early  institutions  of  man,  we 
pass  on  to  consider  the  forms  of  organization  which  societies 
of  men  assumed  at  a  later  period.  In  the  earlier  times  the 
progress  was  not  so  much  voluntary  and  caused  by  reflection 
as  the  result  of  the  laws  of  man's  condition  and  of  the  acci- 
dents which  might  befall  him.  Now  he  becomes  in  a  greater 
degree  the  master  of  his  condition,  he  criticises  and  analyses, 
he  seeks  a  better  constitution,  he  shapes  his  own  governments 
in  a  degree,  he  resists  grievances  and  plans  changes.  Divis- 
ions of  society  into  classes,  ranks  or  castes,  have  begun  to 
exist,  perhaps,  before  the  "  political  animal  "  is  made  aware 
of  his  power;  but  henceforth  nature  alone  does  not  build  up 
governments  for  him  ;  he  now  builds  with  the  help  of,  or  it 
may  be  against,  nature. 

It  is  our  plan  here  to  attempt  with  the  help  of  political 
theorists  and  historians  to  classify  and  describe  the  various 
forms  of  government, and  to  give  such  illustrations  of  each 
of  them, as  may  show  how  they  express  themselves  in  the 
states  where  they  have  been  organized. 

A  very  early  division  of  governments  made  by  the  Greeks 

Divisions  of  gov-   into  monarchies,    oligarchies  and    democracies 

cmments.  appears  in   Herodotus  (ill. ,  §§  80-83)  where  he 

introduces  the  Persian  princes,  after  the  slaughter  of  the  magi, 

as  deliberating,  like  a  school  of  philosophers,  on  the  best  form 

for  their  country.      The  same  distinction  is  made 

Arislotle's  divisions. 

by  ^Eschines  (vs.  Ctes.,  §  3,  vs.  Timarch.,  §  2), 
and  no  doubt  was  current  and  familiar.  Aristotle  in  the 
Politics  accepts  this  division,  as  in  Polit.,  iii.,  chap.  5,  §  I, 
where  he  says  that  "  the  government  and  constitution  being 


FORMS   OF   GOVERNMENT.  467 

identical  and  the  government  being  the  supreme  master  01 
the  state,  it  must  needs  be  that  this  master  be  an  individual, 
or  a  minority,  or  the  mass  of  the  citizens."  But  Aristotle 
goes  on  to  draw  a  distinction  between  governments  where 
the  ruler  or  rulers  govern  for  the  general  interest,  and  those 
where  they  govern  for  their  own  interest.  Thus  there  arise 
six  forms,  three  pure,  and  three  corrupt  or  diverted  from 
their  true  end.  The  names  given  to  the  forms  where  the 
common  interest  is  aimed  at,  are  royalty,  aristocracy  and  re- 
public (7ro\iT€ia) ;  those  given  to  the  forms  in  which  the  ruling 
power  aims  at  its  own  interest  are  tyranny,  oligarchy  and 
demagogy.  The  oligarchy  has  for  its  object  the  special  in- 
terest of  the  rich,  the  demagogy  that  of  the  poor,  the  tyran- 
nis  that  of  the  one  ruler  ;  and  none  of  them,  the  welfare  of 
the  community.  In  this  passage  Aristotle  calls  the  degener- 
ate form  derived  from  the  republic  demagogy,  but  rarely 
makes  use  of  this  term.      (Comp.  vi.  or  iv.,  §  2,  I,  2). 

Plato's   division   of  governments    is   on  another  plan.      As 
„,    ,    ,.  .  .        the  government  depends  on  the  character  of  the 

Plato  s   divisions.  * 

people,  there  are  as  many  kinds  as  there  are 
different  characters  of  men.  To  the  men  of  best  tempered 
character  the  aristocracy  answers.  Next  to  this  in  a  descend- 
ing scale  comes  the  timocracy  of  which  Sparta  and  Crete 
were  specimens,  corresponding  to  the  man  of  ambitious  and 
contentious  spirit.  Below  this  and  growing  out  of  it  is  the 
oligarchy  founded  on  advantages  of  wealth,  and  similar  to 
the  avaricious  man  in  spirit.  Democracy  is  the  next  step 
downward  and  is  represented  by  the  man  of  unrestrained 
desires.  Farthest  off  from  the  perfect  commonwealth  is 
tyranny,  which  grows  out  of  the  license  of  unrestrained  free- 
dom, and  is  supported  by  and  leads  to  all  kinds  of  crimes. 
Both  in  this  view  of  the  connection  of  politics,  and  in  Aris- 
totle's classification  of  the  original  forms  and  the  correspond- 
ing degenerate  ones,  we  find  the  true  principle  that  govern- 
ments must  change  with  a  change  in  the  character  of  those 
who  constitute  a  society,  and  in  their  relative  conditions  of 
life.   (Plat.,  Repub.,  viii.,  547  onw.) 


46S  POLITICAL   SCIENCE. 

Polybius   has  given  us    in  his  sixth  book  a  theory  of  the 
forms    and     transitions    of    politics     suggested 

Polybius.  .  ,  i   i  •      • 

possibly  by  the  passage  of  rlato  s  Republic  just 
now  referred  to.  In  the  infancy  of  society,  as  he  teaches  us 
(vi.,  ^  5  onw.),  it  is  necessary  that  he  who  stands  foremost  in 
bodily  strength  and  physical  courage  should  have  sway. 
This  he  calls  monarchy.  Monarchy  is  succeeded  by  royalty 
(ftacTtXeia),  when  the  ruler  follows  the  rules  of  justice  ;  and, 
instead  of  courage  and  brute  strength,  reason  has  the  pre- 
dominance. It  has  permanence,  "  because  men  believe  that 
not  only  the  rulers  but  their  descendants,  brought  up  by 
them,  will  have  the  same  aims  and  character.  And  if  at  any 
time  the  people  become  disaffected  towards  the  posterity  of 
these  monarchs,  they  will  make  a  choice  afterwards  of  kings 
and  rulers  no  longer  according  to  qualities  of  strength  or 
courage,  but  with  reference  to  superiority  of  sentiments  and 
reason  ;  while  the  race  of  kings,  placed  in  the  midst  of  pleas- 
ures and  luxuries,  will  degenerate  until  they  become  tyrants, 
instead  of  kings,  and  this  degenerate  form  of  government  by 
a  single  man  is  at  last  overthrown  not  by  the  worst  class  of 
society  but  by  the  best,  the  most  manly,  magnanimous  and 
courageous.  This  is  the  origin  of  aristocracy.  For  the 
people,  returning  favor  to  those  who  overthrew  the  monarchs, 
make  them  their  leaders,  and  commit  to  them  their  affairs. 
They,  on  their  part,  at  first  regard  nothing  to  be  more  im- 
portant than  the  public  interest;  but  their  children,  "being 
without  the  experience  of  misfortune,  and  altogether  without 
the  experience  of  political  equality  and  freedom,  addicting 
themselves,  some  of  them,  to  avarice  and  covetousness,  others 
to  drunkenness  and  immoderate  feasts,  others  to  indulgence 
with  women  and  boys,  change  the  aristocracy  into  an  oli- 
garchy," and  speedily  cause  their  own  subversion,  as  the  ty- 
rants did  before  them.  "  The  people  now,  having  put  these 
to  death,  do  not  dare  any  more  to  set  a  king  over  themselves, 
through  fear  of  the  injustice  of  the  early  monarchs,  nor  to 
entrust  public  affairs  to  a  number  of  persons  ;  so  that,  their 
only  hope  that  is  left  unimpaired   being   in  themselves,  they 


FORMS   OF   GOVERNMENT.  469 

make  the  government  a  democracy  instead  of  an  oligarchy. 
So  long  as  any  of  those  who  had  had  experience  of  what 
prominent  position  and  sway  were,  remain  alive,  they  are 
content  with  the  existing  constitution  and  value  most  highly 
freedom  and  liberty  of  speech.  But  when  the  democratic 
institutions  are  handed  down  to  new  generations,  they  cease, 
through  the  force  of  habit,  to  value  as  before  the  public 
liberties,  and  seek  to  have  more  than  the  masses.  Especially 
do  those  who  are  the  wealthier  fall  into  this  spirit.  Then 
comes  on  a  strife  for  power,  together  with  bribery  and  cor- 
ruption of  the  common  people  ;  by  their  eagerness  for  dis- 
tinction they  make  the  people  greedy  of  gifts  and  ready  to 
take  bribes  ;  and  thus  the  democracy  is  dissolved,  and  gives 
place  to  violence  and  the  law  of  force  {^eipoKparia).  For 
the  common  people,having  become  used  to  devour  the  goods 
of  others,  and  to  depend  for  their  living  on  their  neighbors' 
property,  if  they  can  find  a  high-spirited  and  audacious  man 
for  their  leader;  since  they  are  shut  out  from  the  prizes  to  be 
gained  under  the  existing  form  of  government,  will  make  use 
of  the  law  of  force  in  its  full  measure,  and  in  their  assem- 
blies will  decree  death,  exile,  divisions  of  land;  until  becom- 
ing savage  again,  they  again  find  a  despot  and  a  monarch. 
This  is  the  revolution  of  politics,  this  the  natural  arrange- 
ment, according  to  which  forms  of  government  change,  pass 
over  into  others,  and  again  come  back  to  their  old  condi- 
tion." 

We  will  make,  at  present,  no  criticism  on  this  cycle  of 
changes, — which,  if  it  were  in  accordance  with  a  necessary 
law,  would  afford  a  most  hopeless  prospect  to  the  world, — 
except  that  the  genesis  of  tyranny  is  contradicted,  as  far  as 
Greek  history  is  concerned,  by  facts  with  which  Polybius  must 
have  been  familiar.  The  earlier  tyrannies  were  not  the  sequel 
of  the  basileia  or  moderate  and  just  monarchy,  but  sprang  out 
of  the  strife  of  aristocratic  factions  ;  and  those  of  later  Greek 
times  were  caused  by  aspiring  men  who  kept  troops  in  their 
pay.  The  leading  ideas  of  Polybius,  the  three  simple  forms 
and  their  degenerate  copies,    and  the   necessity  of  changes 


47°  POLITICAL   SCIENCE. 

arising  from  moral  and  social  changes,  had  been  established 
in  Greek  thinking  long  before  he  flourished. 

§  155- 

Besides  this  classification,  another  had  considerable  currency 
simple  and  mixed  among  the  later  Greeks  and  the  Romans, — that 
into  simple  and  mixed  forms  of  government. 
Plato  shows,  in  an  interesting  passage  of  the  Laws  (iii.,  691- 
692),  that  the  mingling  of  institutions  had  occurred  to  his 
mind.  The  early  kings,  he  says,  through  cupidity,  sought  to 
be  superior  to  law,  violated  their  oaths,  and  destroyed  their 
own  authority.  The  legislature  of  Sparta  endeavored  to  tem- 
per this  power  of  one  man  by  mingling  other  elements  with 
it.  First,  providentially,  the  line  of  kings  was  divided  into 
two  reigning  together,  and  thus  the  royal  power  was  moder- 
ated and  contracted.  Then  the  wisdom  of  old  age  in  the 
gernsia  was  mingled  with  the  self-willed  strength  of  a  royal 
family.  Finally,  the  power  of  the  cphori  was  put  as  a  bit  into 
the  mouth  of  the  vehement  and  impetuous  sovereignty. 
Thus  royalty  among  the  Lacedaemonians,  becoming  mixed 
with  the  proper  elements,  and  reaching  the  due  measure, 
saved  itself,  and  became  the  cause  of  safety  to  other  states. 
Here  Plato  may  have  looked  on  the  senate  as  representing  an 
aristocracy,  and  the  ephors  as  representing  the  people  ;  or, 
perhaps,  he  only  goes  so  far  as  to  regard  these  institutions 
as  checks  like  the  double  line  of  kings,  without  having  any 
distinct  notion  of  a  mixed  government.* 

*  It  is  worth  while  to  compare  these  opinions  of  Plato  with  the 
severe  criticism  that  Aristotle  passes  on  the  institutions  of  Sparta. 
The  remissness  of  the  laws  in  regard  to  the  women  (which  Plato  also 
notices,  in  tlie  Laws),  the  consequent  unrestrained  love  of  wealth, 
the  inequality  of  estates,  the  institutions  of  the  ephori,  the  puerility 
of  their  election,  the  far  from  perfect  organization  of  the  gerusia, 
some  characteristics  of  the  kingly  power,  the  common  repasts,  the 
evils  attending  the  naval  service,  the  undue  development  of  the  war- 
spirit,  the  management  of  the  finances — each  of  these  points  has  a 
black  mark  put  upon  it.  Sparta  had  greatly  declined  before  Aristo- 
tle wrote,  and  perhaps  he  was  not  the  man  to  give  due  weight  to 


FORMS  OF   GOVERNMENT.  47  I 

Aristotle  does  not  seem  to  have  attached  much  importance 
to  mixed  systems  of  polity,  yet  in  one  place,  at  least,  he  shows 
himself  familiar  with  the  notion.  He  says  (Polit. ,  ii. ,  9,  §§  2,  3), 
that  "  some  persons  regard  Solon  as  having  proved  himself 
an  excellent  legislator,  in  that  he  put  an  end  to  an  oligarchy 
which  was  absolute,  and  freed  the  demus  from  servitude,  and 
established  the  democracy  of  the  country  by  a  good  commin- 
gling of  institutions.  For,  as  they  say,  the  council  of  the 
Areopagus  was  oligarchical,  and  the  election  of  the  magis- 
trates aristocratic,  and  the  constitution  of  the  courts  demo- 
cratic." The  thought  is  thus  shown  to  have  been  before  his 
mind  without  having  made  much  of  an  impression  on  him. 
Others  also  had  entertained  it  before  him. 

Polybius,  however,  expresses  himself  clearly  as  to  the 
importance  and  excellence  of  mixed  forms.  He  says  that 
most  writers  have  mentioned  but  three  forms  of  polity,  basi- 
leia,  aristocracy  and  democracy  ;  but  that,  in  his  opinion,  one 
might  reasonably  ask  them  whether  they  name  these  as  the 
only  or  as  the  best  among  the  governments.  In  either  case 
they  are,  as  he  thinks,  in  an  error.  "  For  it  is  plain  that  the 
polity  which  is  composed  of  all  these  different  ones  must  be 
considered  as  the  best.  For  of  this  we  have  had  proof  not 
in  simple  theory  but  in  fact,  as  Lycurgus  first  established 
after  this  fashion  the  Lacedaemonian  constitution."  This 
thought,  which  probably  came  from  Plato,  is  to  be  traced  in 
the  later  writers.  Thus  Dionysius  of  Halicarnassus  (vii.,  55, 
p.  1440),  makes  a  Roman,  who  is  arguing  for  admission  of 
the  plebs  into  greater  participation  in  the  government,  say, 
that  this  would  preserve  the  freedom,  strength,  and  inward 
peace  of  the  state,"  and  that  the  form  of  polity  which  admin- 
isters public  affairs  should  not  be  an  unmixed  one — oligarchy 
or  democracy — but  the  constitution  which  is  compounded  of 
these  would  be  of  benefit  above  all  things.      "  For  every  form 

what  was  good  in  the  constitution.  To  Plato  Sparta  recalled  the 
attractive  qualities  of  heroic  Greece,  and  he  contrasted  her  forms 
with  the  extreme  democracy  of  Athens.  (For  the  license  of  women 
at  Sparta  Comp.   Plat.  Laws,  i.,  637  C,  and  Stallbaum's  note.) 


472  POLITICAL   SCIENCE. 

of  constitution  most  readily  breaks  forth  into  outrages  and 
lawlessness  when  it  is  simple  and  stands  alone  ;  but,  when  all 
things  are  duly  tempered  and  mingled,  that  element  which 
moves  aside  from  its  place,  and  goes  out  of  the  wonted  order 
is  held  in  restraint  by  that  which  is  sober-minded  and  con- 
tinues true  to  its  own  habits."  Cicero  repeats  the  same 
thought.  In  the  republic  (i.,  xxxv.,  54),  Laelius  asks  Scipio 
which  of  the  three  simple  forms  he  most  approves  of.  The 
answer  is,  "  recte  quaeris  quid  maxime  e  tribus  ;  quoniam 
eorum  nullum  ipsum  per  se  separatum  probo  ;  anteponoque 
singulis  illud  quod  conflatum  fuerit  ex  omnibus."  He  then 
adds  that,  if  any  one  simple  form  is  worthy  of  being  accepted, 
it  is  the  kingly.  A  little  after  he  adds  that  "  while  the  royal 
form  is  far  the  best  of  the  three,  that  form  is  better  than  the 
royal  which  is  composed  of  the  three  best  kinds  of  common- 
wealths by  an  equalizing  and  tempering  process.  For  it  gives 
pleasure  when  there  is  one  prominent  and  regal  element  in  a 
commonwealth;  another  department;  assigned  to  the  authority 
of  the  principal  men  and  some  affairs,  reserved  for  the  judg- 
ment and  decision  of  the  multitude."  This  constitution  has, 
he  thinks,  a  certain  equability  (or  equal  respect  for  the  claims 
of  all  elements  of  society),  and  has  firmness  also,  because  the 
three  simple  forms  turn  into  the  contrary,  vicious  ones,  so 
that  a  master  can  grow  out  of  a  king,  a  faction  out  of  an  aris- 
tocracy, a  mob  and  reign  of  confusion  out  of  a  popular  gov- 
ernment ;  and  also  because  the  kinds  of  government  often 
give  place  to  one  another  ;  while  such  changes  can  scarcely 
happen,  without  great  mistakes  of  the  chief  magistrates,  in 
this  composite  form  of  commonwealth  which  grows  out  of  a 
union  and  duly  tempered  mixture  of  the  several  simple  govern- 
ments." Tacitus  agrees  with  him  in  liking  a  mixed  form  of 
government.  "  All  nations  and  peoples,"  says  he  (Annal.  iv., 
33),  "are  ruled  by  the  people  or  by  the  principal  men,  or  by 
individual  persons.  A  form  of  commonwealth,  constituted 
out  of  these  by  selection  and  union,  can  be  praised  more 
easily  than  it  can  come  into  existence,  or  if  it  exists  it  cannot 
be  lasting." 


FORMS   OF   GOVERNMENT.  473 

§I56. 

The  division  of  forms  proposed  by  Aristotle,  with  the  ad- 
Montesquic's  di-  dition  of  mixed  governments,  by  which  a  new 
vlsl0ns-  class  was  introduced    into   political  theory,  has 

remained  and  has  been  adopted  for  the  most  part  by  modern 
writers.  Montesquieu,  however  (B.  ii.,  ch.  1),  constitutes 
three  species — republican,  monarchical  and  despotic.  The 
first  is  "  that  in  which  the  body  or  only  a  part  of  the  people  is 
possessed  of  supreme  power;  "  the  second,  "  that  in  which  a 
single  person  governs  by  fixed  and  established  laws  ;  "  the 
third,  "  that  in  which  a  single  person  without  law  and  without 
rule  directs  everything  by  his  own  will  and  caprice." 

Here  we  find  two  serious  defects  of  definition.  First,  two 
forms,  democracy  and  aristocracy,  are  included  together  under 
the  head  of  republican  government  which  are  different  in 
nature  and  in  spirit.  Montesquieu  admits  this  difference  by 
treating  of  the  laws  naturally  arising  in  the  two  apart,  and 
by  attempting  to  show  that  the  principle  or  conserving  quality 
is  unlike  in  the  two.  Surely  the  contests  which  ran  through 
Greek  and  Roman  history,  the  hostilities  and  intestine  wars 
to  which  they  have  led,  are  enough  to  show  that  men  have 
felt  that  the  two  do  differ  materially  in  regard  to  the  question 
of  the  supreme  power  and  to  the  political  rights  of  citizens. 
Again,  would  not  the  definition  of  tyranny  exclude  almost 
all  the  governments  of  the  world  from  this  category  ? 
Where  does  a  single  person  without  law  or  rule  direct  every- 
thing by  his  simple  will  and  caprice  ?  Is  there  not  almost 
everywhere  in  despotisms  some  body  of  men,  some  code  of 
laws,  some  religious  faith  and  habits,  that  serve  for  an  effect- 
ual check  on  the  ruler's  will  in  many  particulars,  so  that  he 
is  afraid,  or  unwilling  on  other  accounts,  to  act  according  to 
his  caprice  ?  We  are  wont  to  call  the  later  Roman  empire  a 
despotism.  Yet  here  the  laivs  were  to  a  great  extent  as  fixed 
as  they  can  be  found  to  be  in  any  other  form  of  polity. 

Montesquieu  seems  to  have  made  the  class  of  mixed  gov- 
ernments of  little  account,  for  so  far  as  we  have  observed  he 


474  POLITICAL   SCIENCE. 

never  mentions  it.  And  indeed,  logically,  there  can  be  no 
such  thing  as  a  mixed  government,  if  governments  differ  by 
the  number  of  persons  in  whose  hands  the  power  is  placed. 
If  it  is  placed  in  one  man's  hands  and  that  is  essential  to  the 
species,  this  fact  must  exclude  the  sway  of  a  part  of  society, 
or  of  the  whole.  A  mixed  government  is  thus  an  impossi- 
bility. It  may  however  be  taken  to  mean  a  government 
where  all  the  powers  of  society  are  made  to  unite  in  carrying 
on  affairs  together  in  such  a  way  as  to  restrain  and  modify 
one  another,  so  that  all  the  advantages  which  either  kingly 
or  aristocratic  or  popular  government  could  have,  are  com- 
bined ;  each  power  is  represented  ;  and  the  excesses  or  other 
evils  from  the  selfishness  and  narrow  views  of  a  part  are 
curbed  by  the  influences  of  the  others.  Something  like  this 
seems  to  have  been  the  notion  of  a  mixed  constitution  as  in 
the  familiar  remark  that  the  sovereign,  lords  and  commons 
of  England,  the  three  forces  of  the  constitution,  are  checks 
on  one  another.  Montesquieu  was  alive  to  the  eminent  ex- 
cellences of  this  constitution,  but  he  did  not  find  any  ground 
for  placing  such  tempered  governments  under  a  rubric  by 
themselves.  And  it  may  be  doubted  whether  the  modern 
term  "  limited  "  as  opposed  to  absolute  does  not  express  all 
that  "  mixt "  denoted,  while  it  avoids  some  of  the  incon- 
veniences of  this  latter  word. 

§  157. 
Here  perhaps  it  may  not  be  without  use  if  we  enter  some- 
what more  at  length   into  a  discussion  of  the 

Criticism  of  terms.  .  _     .  111 

meaning  of  the  terms  that  are  used  when  the 
classification  of  politics  is  under  consideration.  And  first  it 
is  to  be  remarked  that  an  absolute  government  may  be  such 
in  the  powers  granted  by  its  constitution  while  it  is  not  abso- 
lute pract ically.  Almost  every  state  so  designated  contains 
forces  of  society  actually  at  rest  which  the  despot  fears  to 
put  in  motion,  and  his  councillors  must  decide  for  him  how 
far  he  can  go  without  danger  in  levying  taxes  or  attacking 
institutions  cherished  by  the  people.      His  advisers  and  ser- 


FORMS   OF   GOVERNMENT.  475 

vants  themselves  impose  a  check  on  him  as  has. been  said, 
and  if  they  think  alike  can  carry  their  measures  against  his 
opinion.  The  religious  element  in  the  state  may  be  such 
that  no  one  will  venture  to  oppose  it,  so  that  compromise, 
or  craft,  producing  divisions  in  its  ranks,  will  be  resorted  to 
by  the  absolute  ruler,  lest  the  people  join  their  religious 
guides.  Fear,  too,  of  personal  violence  from  courtiers  or 
leaders  of  the  army  will  be  a  motive  to  him  if  he  listens  to 
the  voice  of  history.  So  also  there  may  be  no  constitutional 
limit  on  power,  and  yet  the  sense  of  right  awakened  in  a 
people  will  impose  a  check  on  the  despot  and  on  his  advisers. 
A  ruler  of  this  description  in  modern  times,  since  the  belief 
in  individual  rights  has  become  generally  admitted,  would 
not  dare  to  do  what  could  be  done  in  Oriental  countries,  or 
in  the  Roman  empire,  or  even  in  the  reformation  period  when 
it  was  taught  that  the  subject  had  no  property  of  his  own,  but 
everything  belonged  to  the  sovereign. 

In  the  same  way  an  absolute  aristocracy  can  scarcely  avoid 
producing  divisions  in  its  own  ranks,  or  exciting  the  people, 
when  these  have  acquired  wealth  and  intelligence,  to  rebellion 
and  to  attempts  to  overturn  the  government.  An  absolute 
democracy  differs  from  the  other  absolute  forms  in  this,  that 
there  is  no  other  element  besides  the  people  in  the  state.  If 
we  define  it  as  the  constitution  under  which  the  will  of  the 
people  for  the  time  can  be  expressed  in  public  measures,  with- 
out any  check  giving  room  to  soberer  thought  or  formality 
of  discussion,  or  requiring  more  than  a  majority  to  sanction  a 
law  ;  or,  which  is  the  same  thing  in  the  end,  as  the  constitu- 
tion under  which  the  demagogue  plays  the  same  part  as  the 
tyrant  in  a  monarchy;  there  cannot  fail  to  be  parties  growing 
out  of  differences  of  wealth  or  some  other  difference,  and 
one  of  these  parties  will  be  the  object  of  the  absolute  will  of 
the  other.  A  modern  absolute  democracy  will  not  over- 
turn the  principle  of  equal  rights,  or  in  its  theory  of  govern- 
ment intend  to  overthrow  it.  But  this  absolutism  itself,  by 
making  the  will  of  a  majority  the  supreme  rule,  must  end  in  a 
tyranny  over  the  individual. 


476  POLITICAL   SCIENCE. 

In  using  these  important  terms,  we  ought  to  see  that  we  do 
not  confound  the  absolute  character  of  a  constitution  with 
that  of  the  practical  government  under  the  constitution. 
Even  the  most  absolute  government  may  be  controlled  by  old 
constitutional  habits  ;  or  an  unmitigated  despot  may  happen 
to  have  a  mild  character  ;  or  public  opinion  in  the  nation  or 
in  his  ministers  may  make  it  dangerous  to  follow  his  own  will. 
In  estimating  a  particular  government  we  must  not  judge  it 
by  its  constitution  only,  but  must  ask  what  checks  from 
classes  or  orders  in  society,  from  want  of  concentration  of 
power  or  the  like,  prevent  the  absolutism  from  showing  its 
perfect  work  in  the  management  of  affairs. 

It  ought  also  to  be  remarked  that  the  origin  of  government 
does  not  enter  into  the  estimate  of  its  form.  If  the  actual 
polity,  whether  tyranny  or  free  democracy,  is  introduced  by 
force  of  conquest,  it  is  no  other  in  its  type  than  it  would  be  if 
the  people  had  created  it.  Or  if  it  had  started  from  a  very 
imperfect  form  and  by  gradual  growth, — in  the  most  desirable 
of  all  processes, — had  eliminated  one  evil  of  its  constitution 
after  another,  and  had  engrafted  successive  improvements,  sug- 
gested by  experience  and  by  new  political  wisdom,  its  begin- 
ning certainly  gives  no  rule  for  judging  what  it  is  in  its  end. 
A  state  may  have  a  progress  towards  decay  and  degeneracy, 
or  towards  higher  forms  of  political  life.  At  each  epoch  of 
marked  change  it  must  be  of  the  same  class  with  other  states 
of  the  same  kind,  which  had  always  remained  true  to  their 
early  character,  if  any  such  there  can  be. 

The  term  "  viixt  governments  or  polities"  can  only  mean 
that  there  are  several  distinct  elements  in  the  state,  each  of 
which  is  invested  with  a  certain  amount  of  political  power, 
which  it  can  wield  for  its  own  protection  or  for  thwarting  the 
ambitious  and  encroaching  designs  of  another  or  of  the  others. 
There  may  be  and  indeed  there  are  states  where  several  orders 
exist,  three  or  four,  including  the  reigning  house,  but  where 
the  monarch  has  all  constitutional  power  ;  and  the  orders  may 
be  without  rights  of  a  political  kind.  These  are  simple,  ab- 
solute governments.     Now  suppose  one  or  more  of  them  at 


FORMS   OF   GOVERNMENT. 


477 


some  crisis  to  gain  the  right  of  meeting  as  estates  and  of  voting 
their  own  taxes.  Here  a  certain  kind  of  division  or  mingling 
of  power  is  introduced  into  the  constitution,  which  is  a  check 
or  limit  to  the  formerly  absolute  sway  of  the  monarch.  But 
the  control  is,  of  course,  not  everywhere  the  same.  In  some 
states  it  will  be  small  in  extent,  and  administration,  for  in- 
stance, will  remain  chiefly  as  before.  In  others,  it  is  large 
enough  to  serve  as  a  starting-point  for  acquiring  a  greater 
share  of  power.  All  mixed  governments,  being  constructed 
on  the  scheme  of  a  balance  of  power,  have  a  certain  instabil- 
ity or  tendency  to  change,  which  is  due  to  the  changes  in  the 
condition  of  society. 

The  term  "  mixt  "  is  not  altogether  a  happy  one.  A 
state  may  be  so  called  where  there  is  no  tendency  toward  one 
form  more  than  another,  where  the  elements  are  in  chemical 
union;  and  a  second  state  may  have  its  elements  mechanically 
mingled.  In  all  modern  states  of  this  kind  there  must  be  an 
adjustment  of  the  powers  of  society,  but  it  will  be  on  differ- 
ent plans  and  with  different  degrees  of  power  assigned  to  the 
orders  or  forces.  One  will  be  called  a  monarchy  rather  than 
an  aristocracy,  another  may  have  a  strong  popular  element, 
another  may  attempt  to  maintain  an  equilibrium  among  the 
elements  ;  thus  there  may  be  as  many  mixed  governments  as 
there  are  simple. 

The  word  "limited"  has  a  wider  signification.  It  may 
apply  to  any  constitutional  provision  or  any  old  institution, 
by  which  power  is  prevented  from  passing  beyond  due 
bounds,  from  acting  out  its  will  otherwise  than  according  to 
law.  Limits,  as  we  just  now  saw,  may  exist  practically  in  an 
absolute  monarchy  ;  they  may  exist  in  a  democracy  where 
neither  king  nor  aristocracy  exist.  They  may  be  old  institu- 
tions which  have  survived  many  changes  of  political  order 
and  are  now  a  part  of  the  national  life.  They  may  control 
the  power  of  all  the  departments  of  government  and  of  all 
public  offices.  They  may  appear  in  the  mutual  check  of  de- 
partments upon  one  another.  They  may  take  the  form  of 
constitutions. 


478  POLITICAL   SCIENCE. 

In  modern  times  "  constitutional  "  governments  have  been 
introduced  into  a  multitude  of  nations  in  and  out  of  Europe. 
The  word  constitutional  may  denote  the  definition  on  paper 
of  any  forms  whatever,  collected  into  one  body,  or  the  funda- 
mental laws  not  collected  into  a  kind  of  code  by  themselves  ; 
and  a  tyrant  or  an  extreme  democracy  may  have  a  paper 
constitution  as  well  as  any  other  holders  of  power.  But  as 
the  cry  for  constitutions  was  dictated  in  Europe  by  the  desire 
of  having  some  form  of  polity  not  subject  to  the  will  of  a 
ruler  or  a  ministry,  in  which  the  rights  of  a  free  people  could 
be  defined,  and  some  political  stability  be  looked  for;  the 
constitutional  monarchies  that  arose  after  the  French  revolu- 
tional  have  all  been  framed,  although  somewhat  imperfectly, 
in  the  interests  of  freedom  ;  and  they  contain  for  the  most 
part,  in  order  to  secure  the  safety  of  the  monarchs,  the  pro- 
vision of  the  responsibility  of  the  ministers  of  state. 

§158. 
In  another  place  we  have  commented   upon  a  celebrated 
spirit  of  govern-  passage  of    Montesquieu,   where  he    makes    a 
ments-  distinction  between  the  nature  and  the  principle 

of  governments  ;  fear,  honor,  moderation  and  virtue  being, 
as  he  thinks,  the  principles  or  acting  powers  of  despotism, 
monarchy,  aristocracy  and  democracy  respectively.  Here 
we  make  the  remark  that  the  principle  or  spirit  of  two  govern- 
ments which  pertain  to  different  species  of  polities  may  be 
the  same, — a  remark  for  which,  if  we  mistake  not,  we  are  in- 
debted to  Aristotle.  Thus  the  three  forms  which  he  regards 
as  deviations  from  or  corruptions  of  the  simple  forms,  that  is 
tyranny,  oligarchy  and  extreme  democracy  (demagogy, 
ochlochracy),  resemble  each  other  closely  in  more  than  one 
respect,  as  the  Greeks  learned  from  experience.  The  latter 
tyranny  of  Greek  history  was  the  sway,  to  some  extent,  of 
popular  leaders,  who  were  enabled,  by  gratifying  the  whims 
and  hatreds  of  the  people,  to  become  their  despotic  rulers. 
So  the  history  of  the  Italian  republics  furnishes  us  with  ex- 
amples of  condottieri  who  came  to  the  chief  power  with  the 


FORMS   OF   GOVERNMENT.  479 

favor  of  the  lower  populace.  Thus  the  tyranny  and  extreme 
democracy  were  alike  in  their  spirit.  An  oligarchy  again 
may  be  not  so  much  a  corruption  of  an  aristocracy  as  a  com- 
bination of  leaders  of  a  democracy  for  common  purposes. 
All  these  corrupt  forms  agree  in  the  spirit  of  lawlessness  and 
disregard  of  the  general  good,  and  in  endeavoring  to  crush 
parties  composed  of  the  wealthier  or  the  more  intelligent 
classes. 

The  distinctions  between  governments  do  not  end  with  the 
Minor  differences   number  of  persons    actually  in  power,  or  with 

in  the  same  kinds  of  _  . 

polity.  the  character  of  the  governments  in  relation  to 

freedom  or  the  want  of  it.  Within  each  species  there  may 
be  found  differences  due  to  some  historical  cause,  to  religion, 
education,  state  of  civilization,  isolation  or  intercourse,  and  to 
other  conditions,  among  which  physical  ones  may  have  some 
influence,  but  less,  we  believe,  than  Montesquieu  and  others 
have  imagined. 

In  the  Polities  of  Aristotle  the  principal  minor  differences 
Aristotle's  ciassi-  within     the    main     forms     are   the     following. 

fication   of  varieties  -  .......  . 

in  the  leading  forms.  Among  the  varieties  ol  kingly  government,  he 
names  first  that  of  Lacedaemon,  which  is  of  all  the  most 
legal  or  constitutional,  and  not  absolute;  the  kings  having 
the  leading  control  only  when  engaged  in  a  military  expedi- 
tion outside  of  Spartan  territory  and  in  matters  pertaining  to 
religion.  They  have  the  power  of  life  and  death  only  in  the 
heat  of  battle.  This  sort  of  kingship  which  may  be  heredi- 
tary or  elective,  is  but  a  lifelong  military  command,  (iii.,  9, 
§  2).  It  might  be  added  that  the  contemporaneous  lines  of 
kings  distinguish  it  from  literal  monarchy,  and  that  the 
cpJiori  controlled  the  kings  in  war  during  the  later  periods  of 
Spartan  history.  Next  to  this  sort  of  kingly  government  he 
places  that  which  was  to  be  met  with  among  some  of  the 
barbarous  nations.  In  all  of  these  kingdoms  the  supreme 
power  was  like  that  of  the  Greek  tyrant  in  extent,  and  yet 
was  legitimate  and  hereditary.  The  despotism  of  this  sort 
of  monarchy  is  endured  by  the  Asiatic  barbarians  without 
discontent,  as  they  are  more  servile  in  their  nature  than  the 


430  POLITICAL   SCIENCE. 

barbarians  of  Europe.  So  also  the  guards  are  such  as  sur- 
round a  king,  not  those  of  a  tyrant,  being  composed  of  armed 
citizens  and  compatriots,  and  not  of  strangers.  A  third  kind 
of  monarchy  is  that  indicated  by  the  Greek  word  Acsymnetia, 
which  was  a  sort  of  elective  tyranny,  differing  from  the  bar- 
barian monarchies  not  in  being  illegal  but  only  in  being  not 
hereditary.  But  the  Aesymnetae  held  their  office  in  some 
states  through  life  ;  in  others  for  a  certain  time  or  until  a 
certain  object  was  accomplished.  Such  a  one  was  Pittakus 
one  of  the  seven  wise  men,  whom  his  ensmy,  the  poet  Al- 
caeus,  called  a  tyrant.  This  kind  of  supreme  magistrate  has 
been  often  compared  to  the  dictators*  of  Rome  and  the  Italian 
states,  who  were  a  temporary  renewal  of  the  earlier  kings. 
The  fourth  species  of  monarchy,  among  those  mentioned  by 
Aristotle,  is  that  of  the  heroic  times,  constituted  by  the  will 
of  the  cities,  hereditary  by  law,  conferred  on  public  bene- 
factors, and  in  functions  limited  to  the  command  of  the 
armies,  the  offering  of  sacrifices  in  cases  where  priests'  ser- 
vices were  not  necessary,  and  the  decision  of  disputes  between 
man  and  man.  By  degrees  this  kind  of  kings  lost  their  attri- 
butes by  their  own  resignation  of  them  or  by  act  of  the 
people,  until  they  were  reduced  to  the  office  of  performing 
certain  sacrifices,  and — "where  it  was  proper  to  say  that  a 
king  existed, — to  the  command  of  the  armies  beyond  the  bor- 
ders." The  fifth  species  is  when  one  is  master  of  all  things, 
and  resembles  in  power  the  head  of  a  family.  This  and  the 
Spartan  species  may  be  said  to  be  the  two  kinds  properly  so- 
called  :  most  of  the  kinds,  which  have  less  power  than  this  and 
more  than  the  Spartan,  lie  between  these  extremes.     Thus 

*  Comp.  what  T.  Mommsen  says  of  the  dictators,  their  resemblance 
to  and  differences  from  the  kings  at  Rome  in  his  and  Marquardt's 
Handbnch  d.  Rom.  Alterth.  (Rom.  Staatsr.  ii.,  pp.  150-155).  See 
also  E.  Curtius,  Hist,  of  Greece,  transl.  I.,  266,  Am.  ed.  G.  Curtius, 
Gr.  Etymol.  Ed.  4,  p.  706,  derives  this  word  from  cuo-u,  due  portion, 
equal  share,  and  fxvaofxai,  one  who  is  mindful  of,  or  cares  for  the  res- 
toration of  political  equality.  It  is  thus  something  like  hieromne- 
moh,  the  man  who  is  mindful  of  sacred  things,  used  especially  of 
the  deputies  sent  to  the  Amphictyonic  council. 


FORMS   OK   GOVERNMENT.  48 1 

Aristotle  comes  at  last  to  absolute  and  limited  monarchy 
(iii.,  9,  §  3-10,  §  2).  The  absolute  he  calls  TrafifiaaiXeia,  where 
the  king  rules  according  to  his  will  (iii.,  11,  §2),  and  con- 
demns it  when  compared  with  the  sovereignty  of  the  law. 
"  But  when  a  whole  race  or  a  single  person  far  excels  the 
rest  in  virtue,  then  it  is  just  that  this  race  or  this  man  should 
have  the  royal  power.  It  is  not  just  to  ostracise  such  a  one 
nor  to  demand  a  government  passing  from  one  to  another  by 
turn.  Such  a  one  ought  to  be  obeyed  and  to  be  master,  not 
in  his  turn,  but  simply  master  "  (iii.,  11,  §  12).  Thus  while 
distrusting  the  hereditary  principle  (iii.,  10,  §  9),  and  con- 
demning absolute  power  as  contrary  to  nature,  he  makes  an 
exception  for  the  kingship  of  the  hero. 

Among  democracies  Aristotle's  first  class  is  a  constitution 
where  equality  prevails,  that  is  where  the  poor  shall  have  no 
rights  more  extensive  than  those  of  the  rich  ;  where  neither 
shall  be  sovereigns  but  both  be  alike  such.  Next  to  this  he 
places  that  democracy,  in  which  office  depends  on  assessed 
property  small  in  amount,  so  that  those  who  fall  below  this 
limit  shall  not  have  a  right  to  be  elected.  In  a  third  species, 
all  the  citizens  whose  status  is  undoubted  (or  against  whom 
the  state  has  no  unsettled  accounts)  can  partake  of  power  and 
office,  but  the  law  still  remains  supreme.  In  a  fourth  all,  if 
only  citizens,  share  in  the  polity,  but  the  law  is  sovereign.  In 
a  fifth,  under  the  same  conditions,  the  multitude  and  not  the 
law,  is  sovereign.  This  takes  place  when  acts  [passed  by 
the  assembly  of  the  people]  and  not  laws  only  [passed  in  a 
more  formal  way]  have  a  decisive  voice.  This  is  owing  to 
the  demagogues.  But  in  the  city-states  which  have  a  demo- 
cratic constitution  tender  lazv,  there  is  no  demagogue,  but  the 
best  men  among  the  citizens  are  in  the  presidency  of  the 
assembly.  Demagogues  show  themselves  where  law  is  not 
sovereign.  "  The  people  then  becomes  a  veritable  monarch, 
one  composed  of  many  ;  for  the  many  are  sovereigns,  not  each 
individual  in  particular  but  all  together."  "  Such  a  people, 
being  a  monarch,  seeks  to  play  the  monarch  because  it  is  not 
governed  by  law,  and  becomes  despotic,  so  that  flatterers  are 
31 


482  POLITICAL   SCIENCE. 

held  in  honor.  And  such  a  people  is  analogous  to  tyranny 
among  the  governments  controlled  by  a  single  man.  They 
have  the  same  character,  but  are  despotical  toward  the  better 
class  of  citizens."  Thus  the  last  democracy  described  by 
Aristotle,  is  absolute,  above  the  law,  really  governed  by  those 
who  pretend  to  obey  its  will,  the  tool  of  demagogues  (vi.  or 
iv.  4,  §  2-6). 

The  kinds  of  oligarchy  as  enumerated  by  Aristotle  are 
four.  Under  the  first  form  the  poor,  although  they  may  be 
the  majority,  cannot  attain  to  power  because  the  suffrage 
qualification  demands  too  great  an  amount  of  property. 
"  Another  kind  exists  where  the  assessment  required  for  hold- 
ing office  is  large,  and  the  magistrates  co-optate  others  into 
vacant  places.  If,  however,  they  make  a  choice  or  co-opta- 
tion out  of  all  the  qualified  citizens,  this  seems  rather  to  be 
aristocratical,  but  if  from  a  certain  restricted  number,  then  the 
oligarchical  characteristic  appears.  Still  another  sort  of  oli- 
garchy is  when  a  son  takes  his  father's  place  in  public  office." 
A  fourth  species  unites  to  this  hereditary  privilege  that  the 
rulers  and  not  the  law  shall  be  the  controlling  power.  "In 
oligarchies  this  form  corresponds  to  tyranny  among  the  forms 
of  monarchy  as  well  as  to  the  last  mentioned  among  the  de- 
mocracies. This  kind  of  oligarchy  is  called  dynasty.''  *  Thus 
Aristotle  reached  absolute  oligarchy,  the  extreme  degrada- 
tion of  aristocracy.  We  cannot  avoid  adding  his  next  words. 
*'  Often,  while  the  constitution,  as  fixed  by  the  laws,  is  not 
democratic,  the  government,  owing  to  the  habits  and  train- 
ing, is  popular  ;  and,  on  the  other  hand,  although  the  consti- 
tution, as  fixed  by  the  laws,  is  more  popular,  the  habits  and 
training  of  the  community  cause  it  to  be  administered  in  a 
more  popular  way."  A  wise  caution  against  supposing  that 
the  polity  and  the  spirit  with  which  the  government  is  admin- 

*The  word  dynast  elsewhere  occurs  in  this  special  sense.  Comp. 
Plat.  Polit.  291  D.,  and  esp.  Thucyd.  iii.  62,  who  distinguishes  be- 
tween oligarchy  where  the  laws  are  the  same  for  all  and  democracy 
on  the  one  hand,  and  the  dynasty  of  a  few  men,  nearly  approaching 
to  tyrannis  on  the  other.     See  also  Plass,  "  die  Tyrannis,"  i.  132. 


FORMS    OF   GOVERNMENT.  483 

istercd  always  run  in  the  same  direction  (vi.  or  iv.  5,  §  1-2). 
The  various  influences  which  counteract  constitution  tenden- 
cies,social  and  political,  must  ever  be  taken  into  account. 

§  159- 
A  remark  may  here  be  made  which  is  of  some  interest  in 
other  differences  regard  to  tne  Greek  and  Roman  divisions  of 
in  the  same  polity,  governments,  that  they  leave  out  of  considera- 
tion, as  of  no  political  weight,  one  very  important  class  of  the 
inhabitants  of  these  countries — the  slaves.  There  were,  in 
the  Athenian  republic,  in  317  B.  C,  according  to  Clinton's 
probable  calculations,  founded  on  the  statements  respecting 
the  census  of  Demetrius  Phalereus  made  in  that  year,  527,660 
inhabitants,  of  whom  400,000  were  slaves,  while  the  foreign 
residents  made  up  almost  one-third  of  the  remaining  127,660. 
Now.  suppose  that  the  slaves  who  formed  the  main  body  of 
the  laboring  class  had  been  freemen.  There  would  have 
been  nearly  100,000  more  voting  citizens  of  the  lowest  class, 
and  this  would  have  wholly  changed  the  spirit  of  the  govern- 
ment and  probably  the  destinies  of  the  state.  This  ought  to 
come  into  calculation  when  we  ask  to  what  category  a  politi- 
cal community  belongs.  Was  Athens,  "  the  fierce  democra- 
tic,"  a  democracy  at  all,  if  measured  by  modern  ideas,  when 
the  ten  myriads  of  strangers  whose  lot  was  cast  there  neither 
had  any  vote  nor  could  expect  to  have  any  ;  and  could  be 
sure  that  the  most  beggarly  of  the  citizens  of  native  birth 
would  never  endure  that  they  should  vote  ?  Athens  was  an 
aristocracy  if  you  count  in  these  slaves  ;  but  in  its  spirit,  dur- 
ing the  time  after  the  Peloponnesian  war,  it  was  not  only  a 
democracy  but  a  demagogy. 

The  institution  of  slavery  was  thus  not  put  into  the  balance 
by  the  Greek  political  writers,  for  the  reason  perhaps  that  no 
class  of  society  fell  back  on  them  when  it  sought  for  allies. 
The  demus  would  do  this  least  of  all,  for  there  is  a  natural 
pleasure  in  the  lowest  classes  of  a  democracy  in  feeling  that 
they  have  a  class  below  them.  Only  when  the  later  tyranny 
sought  for  instruments,  did   it  look  to  emancipated    slaves. 


484  POLITICAL   SCIENCE. 

But  if  a  large  part  of  the  working  class  is  in  a  state  of  bond- 
age, this  certainly  must  make  more  than  one  difference  be- 
tween a  state  where  such  an  institution  subsists  and  one 
where  it  is  not  tolerated. 

Another  important  element  in  our  political  estimates  must 
ever  be  the  extent  of  territory.  When  the  political  power 
is  chiefly  shut  up  within  the  walls  of  a  city,  the  action  of  all 
the  state  forces  must  be,  in  many  respects,  unlike  that  which 
shows  itself  in  a  large  territory  where  the  same  forces  exist. 
This  gives  rise  to  the  group  of  city-states  with  which  the 
speculations  of  political  writers  among  the  ancients  were 
almost  solely  concerned,  as  contrasted  with  the  great  repub- 
lics of  modern  times,  which  the  use  of  the  representative 
principle  has  rendered  possible.  But  other  forms  as  well  as 
those  of  free  governments  are  affected  by  this  principle,  and 
we  may  make  a  division  in  all  kinds  of  states  on  its  basis. 

Another  division  maybe  denoted  by  the  terms  "simple 
and  compound,"  the  latter  including  states  formed  out  of  a 
number  of  states  by  violence  or  compact,  and  not  strictly 
united  to  the  leading  state  in  one  union  or  even  in  one  form 
of  polity.  Such  would  be  the  vassal  states  of  the  Oriental 
empires  which  managed  their  own  affairs  and  kept  their  own 
forms,  on  condition  of  paying  tribute  and  acknowledging 
fealty  to  the  conqueror,  or  were  placed  with  some  sort  of  in- 
dependence under  provincial  governors.  Such  too,  at  first, 
were  the  parts  of  the  world  conquered  by  the  Romans  ;  and 
such  are  the  dependencies  of  Great  Britain.  Confederacies  also 
for  the  sake  of  convenience  may  be  put  in  this  class,  whether 
of  the  looser  or  the  more  compact  sort.  Still  another  marked 
characteristic  is  that  between  governments  (which  may  per- 
tain to  any  of  the  forms),  according  as  they  are  concentrated 
or  diffused  in  their  administration  ;  and  there  is  a  cognate 
distinction  depending  on  the  connection  between  the  chief 
and  subordinate  officers. 

In  examining  the  principal  forms  of  governments  by  them- 
selves we  shall  begin  with  monarchies,  then  proceed  to  aris- 
tocracies and  democracies,  and  end  with  confederations. 


FORMS   OF   GOVERNMENT.  485 

§  160. 

It  will  be  expedient  to  take  samples  of  the  principal  forms, 
Divisions  of  poii-  and  tnus  view  them  in  the  concrete.  The  city- 
ncs  m  this  work.  states  will  introduce  the  three  forms,  as  being 
the  earliest  class,  after  the  primeval  institutions,  concerning 
which  we  have  accurate  knowledge.  This  will  subject  us  to 
the  inconvenience  of  dividing  up  the  political  history  of  cer- 
tain states  which  have  passed  through  several  stages  of  devel- 
opment, and  of  considering  them  in  separate  chapters,  but  it 
may  bring  out  their  progress  perhaps  more  clearly. 

The  principal  forms  of  monarchy  according  to  our  division 
will  be  those  of  city-states  ;  next  absolute  monarchy  of  the 
Oriental  type  as  originating  in  conquest  ;  then  the  theocratic  ; 
that  which  represents  the  people  and  which  may  be  elective  ; 
that  in  which  the  religious  element  is  strong  ;  the  limited 
monarchies  and  the  partially  disintegrated  ones  of  the  feudal 
type  ;  the  elective,  the  mixed  and  the  constitutional. 

The  aristocracies  may  be  separated  into  those  properly  so 
called  and  the  oligarchies.  Those  states  also  may  be  con- 
sidered here  in  which  other  elements  are  in  conflict  with  the 
leading  one.  Aristocracies  have  been  small  and  generally 
weak,  but  some  very  important  states  of  this  kind  will  call 
for  a  careful  consideration. 

At  this  point  in  our  progress  we  may  suggest  the  remark 
by  way  of  caution,  that  it  ought  not  to  be  supposed  that  the 
main  secret  of  politics  is  discovered  or  revealed  when  they 
have  been  arranged  in  classes.  We  must  not  call  a  state  free 
because  it  has  a  democratic  constitution,  or  even  wholly  tin- 
free  when  it  has  a  despotic  government.  The  form  is  of 
great  importance,  as  disclosing  the  powers  and  range  of  ac- 
tivity which  is  possible  for  the  state  or  the  people  ;  but  every 
state  has  its  individual  character  like  every  human  being. 
Nor  ought  it  to  be  supposed  that  all  polities  in  the  same  class 
are  alike.  On  the  other  hand,  there  are  states  of  one  class 
which  depart  from  the  type  or  form  of  their  class  in  import- 
ant respects  so  as  to  agree  with  states  of  another  species  more 


486  POLITICAL   SCIENCE. 

than  with  their  own  ;  and  there  are  states  which  almost  refuse 
to  be  classified  with  one  form  more  than  with  another. 
Again,  there  are  nations  that  have  run  through  several  forms 
in  their  political  progress  ;  and  among  them  are  several  which 
are  more  important  studies  than  almost  any  that  have  been 
tolerably  stationary.  The  growth,  again,  or  decay  of  such 
states  is  not  due  to  the  development  of  a  polity  alone  ;  in- 
deed, other  causes  which  are  not  political  may  have  acted  on 
the  mode  and  direction  of  this  development. 

Hence  the  utility  of  studying  the  progress  of  constitutions  ; 
and  of  looking  at  the  characteristics  of  individual  states,  es- 
pecially in  the  early  stages  of  their  political  history. 

Democracies  will  be  divided  into  those  of  city-states  and 
those  which  occupy  a  larger  territory,  the  democracies  which 
have  grown  up  naturally  and  those  which  have  been  artificially 
formed  on  the  rule  of  popular  sovereignty  and  of  strict 
equality  verging  towards  a  democratic  tyranny. 

The  compound  states  will  come  last  before  our  notice,  in 
the  order  already  mentioned.  The  forms  to  be  examined 
will  be  those  in  which  a  number  of  states  are  brought  together 
in  some  political  union,  whether  as  subordinate  to  a  larger  po- 
litical power,  on  terms  of  subjection  and  dependence  with- 
out close  political  union,  or  as  constituting  a  confederation 
on  terms  of  equality.  The  greatest  space  will  be  given  to 
the  consideration  of  confederate  systems  under  their  two 
forms  of  an  aggregation  of  states  created  by  a  league,  and  of 
a  state  made  out  of  a  number  of  states.  After  this  examina- 
tion of  forms  of  government,  we  shall  proceed  to  the  subject 
of  the  departments  of  government  or  administration. 


CHAPTER  III. 

MONARCHIES. 

§    161. 
Among  the  forms  of  monarchy,  we  shall  consider  first  that 
of  city-states   and  of  other  small  states  in  the 

Ancient  city-kings.  . 

early  history  ot  mankind.  lhere  is  reason  to 
believe  that,  wherever  a  pastoral  life  was  not  made  perma- 
nent in  a  race  by  the  nature  of  the  country  and  the  situation, 
compact  settlements  succeeded  the  scattered  village  commu- 
nities of  earlier  times.  These  settlements,  as  we  have  seen, 
where  several  clans  came  together,  were  surrounded  with 
walls  for  purposes  of  defending  both  the  residents  and  the 
surrounding  inhabitants,  with  their  flocks,  when  they  needed 
shelter.  When  these  cities  engaged  in  commerce,  the  walls 
were  required  against  invaders  from  the  sea.  The  political 
power  with  the  administration  of  justice,  the  festivals  and 
common  religious  rites  found  their  centre  in  the  generally 
walled  city,  which  was  for  security's  sake  not  on  the  seashore 
but  in  some  situation  provided  with  a  hill  or  a  citadel,  and 
therefore  often  not   in  the  middle   of  the  territory  (Comp. 

§  153). 

1.  The  government  of  these  city-states  in  the  early  times 
was  placed  in  the  hands  of  kings,  or  of  single  magistrates  at 
least,  to  whom  various  names  were  given.  In  all  of  them 
there  seems  to  have  been  a  body  of  more  privileged  freemen, 
whom  we  may  call  nobles,  and  a  class  of  common  freemen, 
with  slaves  or  serfs  either  obtained  by  earlier  conquest  of 
the  lands  where  the  settlements  were  made,  or  brought  for 
sale  from  abroad,  or  gained  by  war  with  a  neighboring  state. 
Thus  through  Greece  and  Italy,  among  the  Phoenicians, 
Canaanites  and  Philistines  on  the  Eastern  coast  of  the  Medi- 


488  POLITICAL   SCIENCE. 

terranean,  there  were  city-states  under  the  sway  of  one  man. 
In  Germany  some  tribes  had  a  similar  constitution,  yet  without 
a  system  of  cities.  In  Gaul  there  were  cities,  but  the  political 
form  was  constructed  after  the  canton  rather  than  after  the 
cities,  and  the  nobles  had  great  masses  of  men  under  them 
in  a  relation  of  clientage  or  serfdom.  The  smallness  of  the 
territory  belonging  to  these  city-kingdoms  has  been  already 
spoken  of  (§  153). 

Wherever  city-states  prevailed,  the  idea  of  confederation 
would  naturally  spring  up.  Yet  the  earlier  confederations 
were  either  for  religious  and  festive  purposes,  or  were  tempo- 
rary ;  so  that  consolidations  on  a  great  scale  seldom  took  place. 
We  meet  in  Greece,  even  in  the  historic  times,  with  the  for- 
mation of  new  cities  by  the  union  of  a  number  of  villages  ; 
and  wherever  the  Greeks  settled  out  of  their  country,  cities 
were  built  almost  as  a  matter  of  course. 

2.  The  poems  of  Homer  give  us  an  idea  of  the  kingly 
estate,  as  it  was  then  found  among  the  Greeks.*  By  the 
side  of  the  commander  in  chief  at  Troy,  who  was  lord  over 
a  considerable  part,  but  not  of  the  whole,  of  Peloponnesus, 
stood  many  associated  captains  who  were  also  kings,  but 
over  smaller  territories,  who  have  this  title  (/3aai\r)e<;),  in  com- 
mon, and  for  the  most  part  the  additional  one  of  being 
sprung  from  Zeus  and  nourished  by  Zeus,  and  whom  already 
to  some  extent  the  myths  of  the  poets  traced  back  to  a 
divine  parent  on  one  or  the  other  side.  It  is  plain  that  their 
divine  right,  and  the  special  protection  of  them  by  the  gods, 
had  now  become  parts  of  the  religious  faith  ;  but  the  histori- 
cal origin  neither  of  kings  nor  of  nobles  can  be  ascertained; 
nor  are  there,  as  far  as  we  are  aware,  any  speculations  about 
it  in  the  earlier  poets.  The  nobles  called  by  Homer  coun- 
sellors, perhaps,  leaders  and  old  men— which  already  could 
signify  office  and  not  age  (as  the  Greek  leaders  at  Troy  are 
not  in  general  conceived  of  as  especially  old)  are  the  senate 
of  Agamemnon,   assembled  by  him  for  meals  which  began 

*  Comp.  Schom,  Gr.,  Alterth.,  i.,  19  et  seq.  and  Mr.  Edw.  A. 
Freeman  in  his  Conipar.  Politics,  lect.  iv. 


MONARCHIES.  489 

with  religious  offerings,  and  after  finishing  the  meal,  called 
on  the  chief  to  speak  and  give  him  advice.  This,  no  doubt, 
was  the  practice  in  all  the  little  kingdoms,  during  peace  as 
well  as  in  war  ;  but  the  head  of  the  state  was  not  bound  to 
follow  their  suggestions.  His  will  gave  the  final  decision, 
but  he  would  of  course  be  slow  to  oppose  a  strong  opinion 
or  to  form  a  decision  in  which  none  supported  him.  The 
common  freemen  were  called  together  to  hear  a  resolution 
made  by  the  king  and  the  elders,  rather  than  to  give  advice 
or  express  their  wishes.  When  Telemachus  (Odys.,  ii.)  calls 
a  gathering  of  the  people  for  the  first  time  after  his  father 
went  to  Troy,  it  was  for  the  purpose  of  complaining  and 
asking  assistance,  and  not  for  any  political  reason. 

The  king  does  not  appear  as  a  judge  in  the  Homeric  poems, 
although  doubtless  he  had  that  for  one  of  his  functions  ;  *  but 
in  the  description  of  the  shield  of  Hercules,  old  men — perhaps 
not  nobles,  but  ancient  men  of  the  people — hear  and  decide 
in  a  case  of  manslaughter.  In  Hesiod's  Works  and  Days, 
the  upper  class,  there  called  "  kings  who  take  gifts,"  are  the 
judges  between  the  poet  and  his  brother,  (vs.  38,39).! 

Taking  another  view  of  the  kings  in  Greece  at  a  later 
period,  we  find  them  leaders  in  war,  judges  in  disputes,  and 
representing  the  community  in  the  sacrifices  of  the  public 
religion  (Aristot.  Pol.,  iii.,  9,  ^  7).  In  several  parts  they 
have  enlarged  their  power,  as  in  the  Doric  kingdom  of  Sparta. 
In  Attica,  where  the  traditions  point  to  twelve  kings  at  first, 
as  among  the  Etrurians  of  Italy,  and  to  a  union  of  the  dis- 
tricts under  one  king,  with  Athens  for  the  centre,  there  had 
been  an  immigration  of  important  families  during  the  dis- 
turbances of  early  Greece  ;  for  this  was  the  more  quiet  corner 
of  the  land.     The    descendants  of  some  of  these    attain  to 

*  II.  xvi.,  542  ;   Odys.,  xix.,  ill, 

f  The  etymology  of  /?ao-iAeus  is  obscure.  See  the  opinion  of  G. 
Curtius,  p.  364  of  his  Gr.  Etym.,  ed.  4.  *Ava£also  is  of  uncertain 
origin.  Rex  is  from  rugo.  King  is  generally  derived  from  Kunni, 
Kyn,  race.  Grimm  has  another  derivation  (Rechtsalterth,  B.  i., 
chap.   1,  beginning). 


490  POLITICAL   SCIENCE. 

royal  power,  and  others  help  to  constitute  a  stronger  nobility 
than  had  grown  up  on  the  soil.  It  marked  an  era  in  the  con- 
stitution of  Attica,  when  the  name  king  (ftaatXevs) ,  for  some 
reason  or  other  becoming  distasteful,  was  abandoned  for  that 
of  archon  (ruler).  It  is  a  breaking  with  antiquity,  and  indi- 
cates a  relative  increase  of  the  power  of  the  nobility.  The 
change,  which  is  veiled  under  the  legend  that  no  one  was 
thought  worthy  to  succeed  Codrus  after  his  self-devotion, 
consisted  perhaps  in  a  greater  responsibility  and  check  on 
royal  power  exercised  by  the  aristocracy  or  eupatridce,  who 
were  his  assessors  in  judicial  proceedings,  and  probably  fur- 
nished the  members  for  the  criminal  court  of  Areopagus. 
The  archons,  selected  for  life  from  the  reigning  family,  lost 
their  religious  functions.  They  filled  the  chief  place  in  the 
state  for  nearly  three  hundred  years  when  this  elective 
monarchy  ceased,  and  the  archonship  for  ten  years  was  es- 
tablished, although  still  remaining  a  prerogative  of  the  old 
royal  house.  Then  it  was  open  by  election  to  all  the  Eupa- 
tridae,  and  in  685  B.  C.  an  annual  archonship,  to  which  the 
nobles  alone  had  access,  completed  the  separation  from  the 
monarchical  spirit  and  prepared  the  way  for  a  democracy.* 

Athens  had  a  slower  and  more  peaceful  development  than 
most  other  city-states  of  Greece,  yet  everywhere  the  transi- 
tion to  more  popular  forms  occurred.  In  all  we  see  the  effect 
of  civil  disorders  and  of  a  new  stage  of  society  in  which  the 
upper  class  are  principal  actors,  and  the  mass  of  freedmen 
have  become  conscious  of  their  strength.  Dissensions  in  a 
well-born  class  and  the  increasing  wealth  of  other  proprietors 
of  the  soil  seem  to  be  the  causes  of  the  revolutions. 

3.  The  monarchy  at  Rome  continued,  according  to  the  his- 

Eariy  kings    of  torical    tradition,  through  seven  reigns  for  two 

hundred  and  forty-four  years,  when  the  last  king 

with  his  family  was  expelled,  and   a  government  under  two 

annual  magistrates,  with  almost  kingly  power,  was  established. 

Admitting  that  the  history  is  uncertain,  that  the  seven  kings 

*Comp.  E.  Curtius,  Hist,  of  Greece,  Amer.  ed.  1,  b.  2,  ch.  2, 


MONARCHIES.  491 

could  not  have  taken  up  so  many  years  in  reigning,  that,  in 
short,  there  was  much  invention  and  much  projection  of  later 
Roman  ideas  into  the  earlier  period,  we  may  be  sure  that  the 
idea  of  the  kingly  power  was  in  the  main  correctly  handed 
down.  In  the  first  place,  he  was  the  king-father,  or  the  holder 
of  power  in  the  state,  with  nearly  the  authority  of  the  father 
in  the  family,  expressing  that  conception  in  the  political 
sphere,  which  the  law  expressed  in  its  definition  of  the.  patria 
protestas.  He  was  more  absolute  than  the  legitimate  kings 
of  the  early  period  of  the  Greek  race,  as  far  as  we  can  trace 
their  authority.  In  religion,  in  war,  in  administration,  he 
was  nearly  uncontrolled.  He  could,  however,  make  no  new 
laws  without  the  consent  of  the  senate  and  the  assembly  of 
the  populus.  But  he  could  not  be  called  to  account  any 
more  than  a  father  could  be  by  his  family. 

What  seems  remarkable,*  when  we  think  of  the  strength 
of  the  hereditary  principle  at  Rome,  the  kingly  office  was 
entirely  elective,  and  thus  the  doctrine  of  the  sovereignty  of 
the  populus  or  burgesses  was  expressed  in  the  constitution, 
as  that  of  the  sovereignty  of  the  whole  people  was  afterwards, 
when  the  imperial  power  succeeded  to  the  republican  consti- 
tution. The  free  citizens  or  burgesses  were  equal  among 
themselves,  or  nearly  so,  while  the  remaining  free  members 
of  the  community  had  no  rights  of  citizenship,  no  participa- 
tion properly  in  the  state. 

The  Servian  constitution  was  military  in  its  objects,  but  it 
took  away  no  power  from  the  populus  or  burgesses  in  full, 
and  gave  none  directly  to  the  non-voting  class.  Yet  it  indi- 
cates that  a  considerable  number  of  persons  of  foreign  birth 
had  come  into  the  community  and  were  in  a  thriving  condi- 
tion ;  it  gave  them,  probably,  places  in  the  army  as  officers  ; 
and  with  wealth  in  their  hands  they  could  not  long  remain 
without  civil  rights. 

The  revolution  which  drove  away  the  last  Tarquin,  putting 

*  If  we  conceive  of  the  elements  of  old  Rome  as  existing  indepen- 
dently side  by  side,  there  was  no  union  but  by  conquest  or  agreement. 
Agreement  expressed  itself  in  election. 


492  POLITICAL   SCIENCE. 

thus  two  annually  elected  magistrates  in  the  place  of  one  of 
no  greater  authority  elected  for  life,  finds  its  parallels  in  the 
other  communities  of  Italy,  not  only  in  those  of  Latin  ex- 
traction but  among  the  Etruscans,  Sabellians  and  Apulians.* 
But  there  must  have  been  some  special  cause  for  this  act, 
which  moved  not  only  the  aristocracy  or  full  burgesses,  but 
the  whole  people.  Some  tyrants,  in  the  times  when  aristoc- 
racy prevailed  in  city-states,  sought  power  by  taking  part  with 
the  lower  people  against  the  upper  class  to  which  they  them- 
selves belonged,  but  in  this  case  we  discover  no  such  move- 
ment. The  hatred  of  the  name  of  king,  as  Mommsen  re- 
marks, shows  that  this  was  a  general  feeling. 

The  Etruscans,  of  another  race  than  the  Latins,  were  in 
early  times  governed  by  kings,  probably  elected 
and  not  hereditary,   and  held   in  decided  check 
by  the   aristocracy.     The  king  was  called  lucumo,  and  in  the 
two  Etruscan  confederacies  of  twelve  states  each,  one  of  the 
kings  had  the  presidency.     The  influence   of  the  aristocracy 
and  of  the  chief  officers  must  have  been  greatly  increased  by 
the  possession  of  the  religious  forms  which  was  in  their  hands. 
4.  From  the  Romans  we  pass  to  the  Germans,  of  whose 
earliest  institutions  we  know  nothing  except  so 
far  as  we  can  infer  it  from  the  accounts  of  J. 
Caesar  and  Tacitus.      Here  we  pass  beyond  the  bounds  of 
city-states,  but  on  account  of  the  similarity  between  their  in- 
stitutions and  those  of  early  Greece  and  Rome,  we  place  them 
together.     Leaving  out  of  view  some  debatable  points,   we 
may  say,  1.  that  in  smaller  districts  composed  of  a  number 
of  hamlets,  a princeps  was  the   political  head,  who  owed  his 
life-long  office  to  election  of  the   free  people,  and  was  not,  it 
would  seem,   necessarily  of  noble  birth.    (Waitz  D.  Verfas- 
sungsgesch.,  i.,   225-227,  ed.  2).     His  duties  were    adminis- 
tration and  judicial  decision  in  smaller  matters  ;  and  in  greater, 
the  preparation  of  business,  judicial  and  other,   for  the  as- 
sembly of  the  people.     The  sovereignty  of  the  community, 

*  Comp.  Mommsen,  Hist,  of  Rome,  i.,  b.  1,  ch.  5,  and  b.  2,  ch.  1 


MONARCHIES.  493 

its  entire  political  freedom,  without  active  participation, 
under  the  initiative  of  the  princeps,  the  union  of  judicial  and 
political  functions  in  the  assembly,  no  very  definite  privileges 
of  the  families  of  noble  birth — such  seem  to  be  the  leading 
features  of  the  smaller  political  unions  at  the  time  when  this 
race  first  comes  under  the  eye  of  history. 

2.  It  is  distinctly  affirmed  that  not  all  the  tribes  or  unions 
had  a  king.  The  Gothones,  the  Rugii,  the  Lemovii  were 
among  the  number  of  monarchical  states,  and  were  character- 
ized by  ready  compliance  with  the  ruler's  will.  (Tac.  de  mor. 
Ger.  44).  So  the  Suiones,  the  Marcomanni,  Ouadi,  Her- 
munduri,  the  tribes  in  the  Scandinavian  peninsula,  were  under 
royal  authority.  On  the  other  hand,  the  old  Saxons  had  no 
king,  but  a  number  of  chieftains  equal  in  authority,  one  of 
whom  in  time  of  war  they  placed  at  the  head  of  affairs  ;  but 
his  pre-eminence  expired  when  the  war  was  over.*  The 
settlers  in  England  all  break  up  into  monarchies,  but  unite 
for  a  time  now  and  then  under  a  common  head,  who  forms  a 
kind  of  president  of  a  confederation,  and  whose  office  expired 
when  the  need  for  it  had  ceased.  We  may  see  in  this  the  de- 
velopment of  the  Saxon  usage  above  spoken  of.  In  general 
these  Saxon  kingdoms  had  a  tendency  to  become  hereditary 
without  establishing  this  as  a  right,  and  the  next  of  kin  could 
be  set  aside  by  the  assembly  of  the  wise  men.  (Comp.  §  142.) 

We  can  affirm  that  as  these  nations  settled  in  Roman  terri- 
tory, there  was  felt  to  be  a  necessity  for  royal  power  of  a 
permanent  kind,  although  the  power  was  treated  as  an  in- 
heritance, and  broken  up  or  put  into  fewer  hands  according 
to  the  laws  of  succession  in  property.  The  tendency  may 
be  accounted  for  not  so  much  by  imitation   of  the  Romans 

*  See  the  passage  from  Beda  in  Prof.  Stubbs'  Const.  Hist.,  i.,  41, 
and  comp.  §  142.  The  theory  that  seems  to  meet  all  difficulties  is 
that  kingly  power  was  a  primeval  and  indigenous  institution  ;  that 
the  principes  represented  the  early  kings  ;  that  where  larger  tribes 
were  formed  by  combinations  of  smaller  communities  a  tribe-king 
was  appointed  when  the  principes  and  their  communities  gave  their 
assent;  and  that  when  they  did  not,  the  principes  chose  a  general 
leader  in  war  whose  power  expired  when  the  war  was  ended. 


494  POLITICAL   SCIENCE. 

as  by  the  needs  of  the  wars  of  conquest.  Other  causes  may 
have  concurred,  such  as  the  binding  of  many  subordinates  to 
the  commander-in-chief  by  gifts  of  lands,  and  the  require- 
ment of  united  action  in  order  to  maintain  themselves  in  the 
control  of  the  conquered  countries. 

We  may  look  on  the  principes  as  an  old  institution,  answer- 
in"-  to  the  Greek  and  Latin  kings  of  the  earliest  time,  as  far 
as  could  be  where  there  was  no  city-life,  and  on  the  German 
hundreds  as  an  earlier  form  of  society  than  the  city-life  of  the 
lands  on  the  Mediterranean.  The  kings  are  heads  of  the 
whole  race  of  people,  who  would  not  be  needed,  as  long  as 
great  movements  were  not  common.  Some,  as  the  old  Sax- 
ons, appointed  a  head  pro  re  nata ;  others,  under  the  influ- 
ence, in  part,  of  a  mythological  connection  of  certain  races 
with  the  divinities,  established  royalty  earlier  and  retained  it 
with  no  intervals  of  return  to  the  old  order  of  things.  That 
the  new  monarchy  was  of  use  in  combining  and  compacting 
larger  states,  in  calling  forth  the  feeling  of  a  national  or  race 
unity  by  representing  it,  can  hardly  be  doubted.  It  is  equally 
certain,  I  think,  that  within  the  territory  it  promoted  order 
and  peace.  It  would  be  folly  to  say,  with  Pope  Gregory  VII. , 
that  "  kings  took  their  origin  from  those  who,  in  ignorance 
of  God,  by  pride,  rapine,  perfidy,  murder,  in  fine,  by  almost 
all  sorts  of  crimes,  under  the  instigation  of  the  devil,  the 
prince  of  the  world,  sought  after  secular  dominion  over  their 
equals,  that  is,  over  men,  in  blind  desire  and  intolerable  pre- 
sumption." *  A  government  that  springs  up  in  many  parts 
of  the  world  at  a  certain  stage  of  human  society,  must  be 
called  for  by  outward  needs  or  political  opinion.  But  it  is 
not  easy  to  see  how  the  monarchy  "  was  rooted  in  the  Ger- 
man mind  "  (Kemble  Anglo-Saxons,  i.,  137),  any  more  than 
how  democracy  was  rooted  in  the  Greek  mind.f 

*  Comp.  Friedberg  de  finium  inter  eccles.,  et  civ.,  regund.  judicio, 
page  8. 

f  Bethmann-Hollweg,  in  his  Civil-process,  iv.  84,  a  citation  I  met 
with  in  Prof.  Stubbs'  work,  before  cited,  p.  67,  says, — in  answer  to  the 
question,  in  which  of  the  categories  of  political  forms  the  old  German 


MONARCHIES.  495 

$    l62. 
From  what  seems  to  be  the  oldest  form  of  royal  power 
we  pass  to  the  absolute  monarchy  growing  out 

Absolute  monarchy,  . 

of  conquest,  and  supported  by  superiority  in 
arms.  This,  again,  seems  to  be  one  of  the  earlier  forms  of 
political  rule  in  the  world,  and  with  all  its  lawlessness  did  the 
immense  good  to  the  world  of  making  intercourse  more 
secure  and  important  than  it  had  been  before.  If  the  world 
was  broken  up  at  one  time  into  a  vast  multitude  of  little 
communities  differing  and  with  every  generation  becoming 
more  different  in  language,  institutions,  religion,  and  thus 
having  almost  nothing  in  common,  it  was  essential  to  progress 
and  peace  that  there  should  be  a  bond  of  union  and  a  com- 
mon power  reaching  over  wide  tracts  of  country.  In  looking 
at  human  interests  on  the  whole,  then,  the  consolidating  em- 
pires of  antiquity  must  be  regarded  as  promoting  the  welfare 
of  mankind. 

To  a  great  extent,  however,  this  bringing  of  the  parts  of 
the  world  together,  was  outward.  There  was  attending  the 
spread  of  these  empires  no  proper  fusion  or  elevation  of  their 
subjects.  The  tributary  condition,  with  the  same  govern- 
ment as  before,  with  no  disturbance  of  existing  forms  of  op- 
pressive administration,  was  all  that  was  required  of  the 
conquered  provinces.      Nothing  humane  or  elevating  ema- 

constitutions  ought  to  be  placed, — that  it  should  be  called  a  democracy, 
"inasmuch  as  the  highest  state-power  lay  in  the  body  of  free  mem- 
bers of  the  state-community  ;  just  as  in  the  gau  and  small  commune 
affairs  were  managed  by  the  assembly  of  the  free  heads  of  families. 
It  was,  however,  so  far  aristocratic  that  the  unfree  and  even  the 
freedmen  were  excluded  from  all  part  in  public  affairs.  But  apart 
from  these  elements,  aristocratic  and  even  monarchical  elements 
were  not  strangers  to  the  oldest  German  constitutions;  how,  other- 
wise, could  they  play  so  great  a  role  in  all  Germanic  nations  in  the 
middle  ages  and  even  until  the  present  time  ?  "  The  universality 
shows  a  universal  cause,  but  as  man  is  pliable  and  capable  of  receiv- 
ing all  political  forms  according  to  his  needs,  I  do  not  see  how  an 
especial  leaning  towards  these  forms  can  be  argued  to  have  existed 
for  ages  without  a  quicker  development. 


496  POLITICAL   SCIENCE. 

nated  from  the  central  seat  of  power  at  Nineveh  or  Babylon. 
Liberty  to  pass  between  remote  places  without  danger  of 
robbery,  the  distribution  of  the  products  of  the  earth  over  a 
wider  surface,  with  a  diffusion,  to  a  small  degree,  of  certain 
arts, — these  were  the  good  results  of  the  earlier  conquests. 
Of  the  simple  despotisms  which  brought  these  results  about, 
considered  as  forms  of  absolute  power,  nothing  needs  to  be 
said. 

The  general  type  of  oriental  monarchy  is  expressed  by  the 
.  „        •   ,  ,  word  despotism,  which  implies  the  relation  of 

especially      oriental  Sr  '  r 

monarchies.  ^he  master  to  the  slave.     The  exact  distinctions 

between  the  freeman,  the  serf  and  the  slave,  the  notion  of 
rights  which  the  government  of  the  despot  could  not  invade, 
the  limitation  of  power  by  its  divisions  into  independent  de- 
partments, the  right,  especially  of  the  subjects  to  hold  prop- 
erty which  was  fully  their  own,  were  either  unknown  or  had 
little  influence  on  governments.  The  inhabitants  of  many 
eastern  countries  were  by  climate,  religious  doctrine,  and 
want  of  power  to  combine,  so  weakened  in  character,  that 
despotism  had  full  room  and  was  under  no  apprehension  of 
resistance.  In  India  "  the  doctrines  taught  by  the  Brahmins 
of  patient  obedience,  of  subjection  to  destiny,  of  a  quiet  and 
submissive  life,  connected  with  a  constant  reference  to  a  des- 
tiny after  death,  were  calculated  to  increase  the  already  un- 
controlled power  of  the  kings  by  relaxing  the  energy  of  the 
people,  their  independence  in  spirit  and  bearing,  their  bold- 
ness and  enterprise."  *  Here,  also,  the  subjugation  of  an 
earlier  race  to  the  Aryans,  added  the  submission  caused  by 
conquest  to  other  reasons  for  despotical  institutions.  In 
countries  farther  towards  the  west,  Assyria,  Babylonia,  Persia, 
the  same  cause  had  full  sweep.  Everywhere  was  the  king 
held  forth  as  a  representative,  as  an  incarnation  of  a  god. 
"  Never  may  a  ruler  be  treated  with  contempt,"  say  the  laws 
of  Manu  (vii.,  8),  "  even  if  he  is  still  a  child  ;  for  a  great 
divinity  dwells  in  a  human  form." 

*Duncker,  Arier,  ed.  3,  i.,  p.  138. 


MONARCHIES.  497 

The  Persian  despotism,  as  we  find  it  under  Darius  Hystas- 
pes,  compares  advantageously  with  most  other  eastern  mon- 
archies. The  different  nationalities  were  permitted  to  enjoy 
their  ancestral  institutions,  the  control  over  the  provincial 
governors  was  vigilant,  justice  was  tolerably  well  administered, 
in  short,  the  mind  of  an  enlightened  ruler  appears  in  the  con- 
duct of  affairs.  But  the  system  was  the  same  that  we  find  in 
other  parts  of  the  east,  except  that  the  king  was  farther  off 
from  the  divine  being  in  his  exaltation,  in  proportion  as  the 
religion  was  purer  than  any  other  heathen  system.  (Comp. 
§  201.) 

*  163. 

A  sovereign  maybe  regarded  as  an  incarnation,  or  as  a  rep- 
Theocratic  and  re-  resentative  of  God,  and  in  this  latter  relation  as 
ligious  monarchy.  a  mefjjator  between  men  and  their  divinities.  It 
is  difficult  to  give  a  precise  idea  of  religious  monarchy. 
Loosely  speaking,  it  is  that  polity  in  which  religious  ideas  of 
sovereign  power  make  it  natural  that  the  people  should  render 
a  similar  obedience  to  the  king  and  to  their  objects  of  divine 
worship,  that  his  person  should  be  sacred,  his  rights  very 
great,  if  not  uncontrolled,  and  that  the  same  conception  in  his 
mind  should  remove  him  from  the  condition  of  man  and  take 
away  his  sense  of  responsibility  to  human  beings.  In  such  a 
monarchy  the  priests,  if  a  compact  body  or  a  caste,  could  act 
as  a  check  to  some  extent,  but  no  such  control  in  public  affairs 
appears  under  the  heathen  religions  as  that  of  the  Hebrew 
prophets. 

To  certain  religious  monarchies,  that  is,  such  as  are  sup- 
Theocratic  mon-  ported  by  religious  ideas,  the  name  of  theocratic 
archy.  monarchies  is  given.      Here  we  may  first  ask 

what  is  meant  by  a  theocracy.  The  word  first  occurs,  we  be- 
lieve, in  Josephus,  although  the  passage  where  he  makes  use 
of  it  shows  that  he  did  not  coin  it.  He  says  (c.  Apion.  ii. ,  16), 
that  there  "are  endless  differences  among  men  in  their  usages 
and  laws.  Some  entrust  the  power  of  government  to  a  mon- 
arch, others  to  the  dynasty  of  a  few,  others  still  to  the  people. 
32 


498  POLITICAL   SCIENCE. 

But  our  lawgiver,  having  respect  to  none  of  these,  made  his 
constitution  a  theocracy,  as  one  may  say,  putting  a  force  on 
the  word,  by  ascribing  rule  and  power  to  God,  and  persuad- 
ing all  to  look  to  him  as  being  the  author  of  all  good  that  be- 
longs to  mankind  in  common,  and  to  each  individual,  and  of 
all  that  they  receive  when  they  offer  prayer  in  their  perplexi- 
ties." Here  the  very  essence  of  theocracy  seems  to  be  left 
out  of  the  definition.  Josephus  is  content  with  representing 
it  as  lying  in  a  persuasion  of  the  providence  of  God,  as  a  ruler 
over  men.  But  such  a  faith  can  exist  and  be  acted  upon  in 
any  form  of  human  polity.  It  must  mean  much  more  than 
this,  and  first,  that  the  laws,  not  only  the  moral 

lewish  theocracy.  ......... 

but  also  the  civil  and  religious,  are  expressly 
given  by  the  divine  being  through  some  legate  and  are  not 
subject  to  human  alteration.  A  second  idea  is  that  the  civil 
constitution  is  prescribed  by  his  will,  its  principles  meet  with 
his  approval,  and  the  persons  who  administer  it  are  not  only 
in  a  sense  his  representatives,  but  are  consented  to,  if  not 
appointed  by  him.  It  is  also  implied,  tliirdly,  that  the  na- 
tion with  such  a  constitution  is  under  his  care,  and  is  to  re- 
ceive blessings  or  calamity  as  the  laws  are  observed  or 
neglected.  We  may  add,  perhaps,  that  he  is  expected  to 
make  known  his  will  from  time  to  time,  for  the  well-being  or 
reformation  of  his  subjects.  But  it  is  not  necessarily  involved 
in  a  theocracy,  or,  at  least,  in  the  Jewish  form  so-called,  that 
there  should  be  any  one  particular  form  of  government.  Thus 
it  existed  under  Moses,  and  afterwards,  without  a  king  ;  and 
when  the  people  wanted  a  king,  the  prophet  Samuel  was 
averse  to  the  change  of  polity.  The  theocracy,  therefore, 
could  have  existed  without  putting  on  the  form  of  a  mon- 
archy. Yet  when  David  became  king,  Jehovah  is  represented, 
as  by  covenant,  giving  the  kingdom  to  him  and  his  descend- 
ants, subject,  however,  to  chastisements  for  unfaithfulness.  . 
Such  a  chastisement  was  the  separation  of  the  northern  tribes 
from  the  house  of  David.  These  were  permanently  in  a  state 
of  apostasy,  and  the  complete  fulfilment  of  the  covenant  with 
David  would  be  their  reunion  under  one  of  his  descendants. 


monarchies.  499 

To  sum  up,  the  theocracy  might  subsist  under  any  political 
constitution  ;  it,  however,  at  length  took  the  form  of  mon- 
archy under  the  family  of  David,  showing  in  this  that  a  code 
of  theocratic  laws  might  be  upheld  under  a  changing  political 
constitution.  Moreover,  very  much  might  be  left  to  the  wis- 
dom and  judgment  of  the  kings,  thus  divinely  appointed,  in 
developing  the  principles  of  the  law  according  to  new  neces- 
sities of  the  people.  Thus  David  made  most  important  addi- 
tions to  the  temple-service,  without  any  special  divine  com- 
mand. The  theocracy,  then,  was  not  an  all-absorbing 
absolutism  of  God,  as  the  God  of  the  people,  but  a  set  of 
principles  and  a  government  derived  by  revelation  from  him, 
and  so  far  unalterable. 

It  may  be  doubted  whether  this  particular  theocratic  sys- 
tem could  be  called  absolute,  so  far  as  the  monarch  was  con- 
cerned. The  prophets  were  nearer  to  the  fountain  of  theo- 
cratic power  than  the  kings  were  ;  and  they  were  frequent 
checks  on  departures  from  the  spirit  of  the  religion.  The 
priests  were  another,  but  a  smaller  check  ;  thus  they  resist 
Uzziah,  when  he  takes  on  himself  to  offer  incense  in  the 
temple.  An  absolute  command,  again,  in  the  law  could  not 
be  set  aside  by  the  king  without  treason  to  the  theocracy. 
It  gave  him  power,  but  it  restrained  him  in  the  use  of  power. 

We  may  compare  the  relations  of  a  theocracy  like  the  Jew- 
ish as  to  civil  polity  with  those  of  the  oracle  at  Delphi, 
"  the  common  hearth  of  Hellas  "  and  the  centre  of  religious 
worship.  It  was  thought  in  its  responses  to  be  a  fountain  of 
wisdom,  and  hence  both  private  persons  and  states  consulted 
it.  When  colonies  were  projected,  its  advice  was  generally 
sought.  The  constitution  and  laws  of  Lycurgus  are  reputed 
to  have  received  their  sanction  from  this  source.  The  laws 
of  Zaleukus  were  given  with  the  same  divine  permission  ; 
Solon  and  Clisthenes  got  the  approbation  of  the  oracle.  In 
most  cases  new  religious  festivals  were  not  instituted  without 
Apollo's  allowance  ;  and  there  are  numerous  examples  where 
undertakings  of  a  public  character  were  abandoned  after 
an    unfavorable    response,    and  prosecuted    only    when    the 


500  POLITICAL   SCIENCE. 

divinity  concurred.  Even  the  line  of  kings  of  Cyrene  was 
thus  in  a  manner  appointed  by  the  oracle.  As  far  as  rela- 
tions to  politics  are  concerned,  it  mattered  little  whether  in  a 
theocracy  a  direct  revelation  imposed  a  law,  or  merely  gave 
or  withheld  consent  from  a  law  or  project.  The  race  of 
David  were  to  be  kings  by  covenant  of  God  ;  the  Battiadse 
of  Cyrene  were  sanctioned  by  the  oracle  at  Delphi.  (Herod. 
iv\,  155,  et  seq.).  The  laws  of  Moses  were  uttered  by  reve- 
lation ;  those  of  Lycurgus  received  divine  sanction  after 
being  put  together.  In  both  cases  there  was  something  fixed 
in  the  faith  of  the  nations,  and  in  both  the  theocratic  inter- 
ference did  not  imply  that  absolute  civil  authority  was  con- 
ceded. The  kings  of  the  house  of  David  were  less  absolute 
and  less  tyrannical,  in  spirit  at  least,  than  those  of  northern 
Israel,  who  had  no  divine  sanction  for  the  most  part,  although 
Jeroboam  and  Jehu  were  helped  or  put  in  the  throne  by 
prophets.  The  house  of  Omri  were  mere  usurpers  and  had 
no  religious  sanction  whatever  ;  they  were  far  more  despotical 
as  well  as  far  less  safe  on  their  thrones  than  the  house  of 
David. 

Our  conclusion  then  is  that  a  theocratic  government  may 
assume  any  form  ;  that  if  it  is  a  monarchy,  the  sovereign  may 
or  may  not  be  regarded  as  having  a  special  divine  right ; 
that  if  he  have  a  divine  right,  there  may  be  divine  or  civil 
limitations  upon  his  power,  preventing  it  from  becoming  ab- 
solute. It  is  plain,  however,  that  where  a  king  or  line  of 
kings  is  conceived  of  as  placed  in  the  throne  by  divine  power, 
and  has  no  check  of  a  divine  law  or  of  a  constitution  over 
him  ;  the  belief  that  he  thus  receives  his  authority  helps  him  to 
use  his  power  freely,  by  the  reverence  which  he  inspires  as  a 
divinely  commissioned  being  who  stands  far  above  his  fellow- 
men,  and  causes  them  to  be  submissive  and  even  abject. 
But  the  belief,  also,  of  a  successful  conqueror,  that  his  god  or 
gods  have  raised  him  to  the  throne  is  an  encouragement  to 
the  unscrupulous  exercise  of  power. 


MONARCHIES.  501 

§  164. 
The  Chinese  government  may  be  called  absolute,  but  how 
Chinese,  or  abso-  stands  the  emperor  related  to  the  religion  ?     He 

lute  patriarchal  mo-     .  .      .  .     .  , 

narchy.  is  the  son  of  heaven  and  the  iather  of  the  people  ; 

he  alone  makes  public  offerings  to  heaven,  to  earth,  the  great 
streams  and  mountains  which  belong  to  the  whole  empire, 
"  while  the  great  and  small  vassal-princes  formerly  only  gave 
offerings  to  the  mountains,  rivers  and  spirits  of  their  terri- 
tory ;  "  *  he  is  the  son  and  the  vassal  of  heaven,  indebted  for 
his  power  to  no  man  but  only  to  heaven,  whether  he  came  to 
the  throne  by  birth,  or  choice,  or  revolution.  All  executive 
power  emanates  from  the  king,  and  the  people  has  no  self- 
government  of  any  kind.  As  the  highest  representative  of 
heaven  he  enjoys  almost  divine  reverence,  and  the  kingdom 
with  all  that  it  contains  may  be  said  to  belong  to  him.f  The 
government  of  China,  then,  is  a  pure  absolutism,  built  on  the 
religious  idea  of  the  emperor's  relations  to  heaven,  as  well  as 
on  strict  notions  of  paternal  and  patriarchal  power  transferred 
to  the  political  ruler.  And  yet  there  are  checks  on  this  abso- 
lute power,  both  of  a  moral  and  of  an  irregular  political  kind. 
The  moral  power  lies  in  the  voices  of  the  wise  men  of  old 
that  by  vicious  practice  the  king  falls  below  the  idea  of  being 
the  son  of  heaven,  and  even  forfeits  his  throne.  The  Shu- 
king  says  that  "  heaven  has  no  especial  predilection  for  one 
or  another  man,  but  loves  those  who  treat  it  with  respect." 
And  again,  another  book,  the  Ta  Hioh,  uses  these  words  : 
"The  commission  of  heaven  conferring  the  government  upon 
a  man,  does  not  confer  it  for  all  time.  If  he  uses  it  aright, 
he  retains  it ;  if  unjustly,  he  loses  it."  With  this  may  be  men- 
tioned the  doctrine  that  the  discontent  of  the  people  is  a 
measure  of  the  emperor's  ill-desert.  He  is  responsible  for  it. 
Under  a  good  emperor  there   can  be  no  insurrection  of  the 

*  Plath,  Relig.  u.  Cult.  d.  alt.  Chinesen,  in  transact,  of  the  royal 
Bavarian  Acad.  (1862),  p.  15  of  Abhandl.,  1. 

f  Comp.  Wuttke,  Gesch.  d.  Heidenth,  ii.,  §  61  et  seq.,  with  the 
references  there  made.     The  citations  following  are  from  his  work. 


502  POLITICAL   SCIENCE. 

people  ;  a  good  and  righteous  prince  finds  everywhere  obe- 
dience and  love.  This  imputation  of  the  sins  and  even  of 
the  calamities  of  the  people  is  often  insisted  on  in  the  books 
and  carried  to  an  absurd  length.  The  right  of  revolution  is 
admitted  in  the  books  in  this  sense — that  when  the  emperor 
instead  of  following  the  ordinances  of  heaven,  makes  his  own 
will  his  rule,  the  people  is  no  longer  bound  to  render  him 
obedience  ;  nay,  it  has  the  right  and  duty  to  drive  him  from  the 
throne.  The  frequent  changes  of  dynasty  by  revolution,  and 
the  insurrections  which  often  occur  show  that  this  doctrine 
of  the  wise  men  is  carried  out  in  practice  by  the  nation.  In 
regard  to  successions  in  the  oldest  times  the  practice  was  the 
contrary  of  that  which  generally  prevails  in  absolute  govern- 
ments. The  emperor  with  his  ministers  and  persons  of  im- 
portance chose  the  successor,  sometimes  passing  over  the 
sons  of  the  emperor,  and  making  the  choice  out  of  obscure 
families.  Thus,  after  the  death  of  the  fourth  emperor,  an 
assembly  of  the  mandarins  and  people,  discontented  with  the 
slackness  of  the  late  ruler,  chose  his  nephew.  In  another 
case  the  emperor  was  deposed  and  his  brother  put  in  his 
place.*  This,  however,  can  have  been  no  great  check  upon 
despotic  power  exerted  without  injuring  the  community  by 
a  wise  prince. 

Another  monarchy  of  the  absolute  type,  strictly  hereditary 
in  its  law  of  succession,  in  which  the  religious 
idea  had  greater  sway  than  it  had  in  China,  was 
that  of  Japan.  The  chief  ruler  here, .the  son  of  the  Sun-spirit, 
the  Dairi,  or  Mikado,  was  indeed  absolute  over  against  the 
people  ;  but  a  nobility  with  great  privileges,  and  reputed  to 
be  allied  with  the  Dairi,  held  him  in  some  sort  of  check. 
Another  check  began  in  the  twelfth  century,  when  the  general- 
in-chief  of  the  army  managed  to  get  a  position  where  he 
thrust  the  old  legitimate  head  of  affairs  into  a  secondary  place, 
but  in  quite  recent  times  he  has  been  overthrown.  In  the  old 
Japanese  opinion,  the  Dairi  was   more  than  a  representative 

*  Wuttke,  §§  6$,  65. 


MONARCHIES.  503 

of  divine  power,  he  was  an  incarnation,  perhaps  owing  to  the 
influence  of  Buddhism.  Recently  it  is  well  known,  a  revolu- 
tion of  affairs  has  made  the  Dairi  again  sole  ruler,  and  the 
feudal  Daimios  have  given  up  their  territorial  authority.  The 
government,  in  other  respects,  seems  to  be  departing  from 
the  old  principles  of  administration  in  various  ways,  under 
the  influence  of  foreign  opinions. 

The  type  of  monarchy  in  Japan  has  been  compared  with  that 
of  the  Incas,  the  children  of  the  sun,  in  Peru. 

Peruvian. 

But  these  rulers,  though  similar  to  the  Japan- 
ese in  uniting  temporal  and  spiritual  power,  were  far  more 
absolute  in  fact.  Mr.  Prescott  says  of  them  that  "we  shall 
look  in  vain  in  the  history  of  the  east  for  a  parallel  to  the  ab- 
solute control  exercised  by  the  Inca  over  his  subjects.  .  .  He 
was  both  the  lawgiver  and  the  law.  He  was  not  merely  the 
representative  of  the  divinity,  or,  like  the  Pope,  its  vicegerent; 
but  he  was  the  divinity  itself.  The  violation  of  his  ordinance 
was  sacrilege.  Never  was  there  a  scheme  of  government  en- 
forced by  such  terrible  sanctions,  or  which  bore  so  oppress- 
ively on  the  subjects  of  it.  For  it  reached  not  only  to  the 
visible  acts,  but  to  the  private  conduct,  the  words,  the  very 
thoughts,  of  its  vassals."  *  To  this  he  adds  that  an  order 
of  hereditary  nobles  of  the  same  descent  with  the  Incas  were 
the  officials  and  the  prompt  and  well  practised  agents  for 
carrying  out  the  executive  measures  of  the  administration. 
This  added  not  a  little,  he  thinks,  to  the  efficacy  of  the  gov- 
ernment. In  itself,  however,  a  hereditary  class  is  rather  a 
check  on  despotical  power  ;  and  a  general  levelling  of  ranks, 
with  a  bureaucracy  depending  on  the  sovereign,  offers  the  best 
field  for  uncontrolled  sway  over  a  nation.  A  territorial  no- 
bility are  apt  to  be  independent  in  feeling,  and  to  have  an  influ- 
ence over  their  retainers  and  a  common  feeling  among  them- 
selves, which  can  make  them  strong  and  turbulent.  The  real 
explanation  of  the  strict  absolutism  in  Peru  lay,  as  it  seems, 
in  the  religious  faith  and  the  peculiarly  abject  nature  of  the 

*  Conquest  of  Peru,  i.,  166. 


504  POLITICAL   SCIENCE. 

people,  perhaps  united  with  the  general  mildness  of  the  gov- 
ernment in  practice. 

§165. 
In  the  two  last  examples  we  have  had  civil  and  religious 
Mohanunedanab-  authority  united  in  the  original  constitution 
soime  monarchy.  under  one  ruler.  The  Mohammedan  idea  of 
monarchy  furnishes  a  third  specimen  of  the  same  sort.  The 
Califs  succeeded  to  Mohammed's  temporal  and  spiritual  power, 
both.  They  had,  at  first,  no  hereditary  right  to  this  succes- 
sion, nor  was  this  principle  introduced  until  the  Ommiad 
Moawiah  I.,  (ob.  679),  managed  to  have  his  son  Jezid  I. 
accepted  in  his  lifetime  as  future  ruler.  The  constant  wars 
probably  increased  the  absolute  spirit,  and  the  califate  sunk 
more  and  more  into  a  military  despotism  from  the  patriarchal 
type  of  the  first  heads  of  the  faithful.  (H.  Leo,  Mittelalt., 
222.)  The  breaks  in  this  absolutism  were  found  in  the 
schisms  and  the  fanatical  sects  which  divided  up  the  Moham- 
medan world,  in  the  interpretations  of  the  Koran  by  the  re- 
ligious expounders,  and  in  the  great  power  of  the  viziers. 

§  166. 
4.   We  pass  on  next  to  imperial  despotism,  or  that  form 
imperial  despotism  which  is  founded  on  the  doctrine  of  the  sover- 

founded  on  popular 

sovereignty.  eignty  of  the  people  in  the  last  resort.     The  em- 

peror has  become  their  permanent  representative,  and  their 
share  in  the  government  is  little  or  nothing.  Two  great 
examples  of  this  are  the  Roman  principate  or  first  empire,  and 
the  two  Napoleonic  empires.  As  connected  in  the  order  of 
time  we  shall  briefly  consider  the  western  empire  of  Diocle- 
tian and  Constantine,  and  the  eastern  or  Byzantine  in  com- 
pany with  the  empire  of  Augustus  and  his  successors. 

The  first  form  of  the  empire  was  the  natural  heir  of  the 

The  Roman  princi-  republic,  and  was  built  on  the  sovereignty  of 

the  people.     It  arose  out  of  the  dualism  in  the 

republic,  or  the  strife  between  the   optimates,  whose  organ 

was  the  senate,  and    the   people   under  tribunes  and  other 


MONARCHIES.  505 

leaders;  of  whom,  as  generally  happens  in  ill-balanced  polities, 
members  of  the  upper  classes  and  even  of  old  patrician  fami- 
lies were  among  the  most  influential.  It  was  facilitated  by 
the  principle  of  the  Roman  constitution  of  vesting  very  con- 
siderable power  in  the  chief  magistrates,  which  was  handed 
down  from  the  primeval  monarchy,  and  was  never  sufficiently 
checked  by  all  the  changes  which  transferred  from  the  con- 
suls part  of  their  power  to  new  state-officers.  Its  right  to 
exist  was  perhaps  also  based  on  the  inadequacy  of  the  sen- 
ate's administrative  power  to  spread  order,  justice,  and  peace 
through  such  an  immense  empire.  It  belonged  to  an  age 
when  the  old  religion  was  no  longer  believed  in;  and  when 
the  practice  of  offering  religious  honors  to  the  rulers  of  a  large 
kingdom;  passed  over  from  the  degenerate  subjects  of  the 
successors  of  Alexander  to  imperial  Rome;  and  was  not 
offensive  to  the  mass  of  the  people,  while  the  emperors  seem 
to  have  accepted  it  out  of  state  policy.  Religious  veneration 
added  what  it  could  of  lustre  to  the  dignity  and  glory  of  the 
Roman  prince.  Besides  all  this,  when  we  take  into  account, 
also,  that  the  people  of  the  city  had  become,  to  a  great  extent, 
a  mingled  populace  of  foreign  birth,  accustomed  to  servility 
and  despotism  from  the  first,  that  the  provinces  wanted  the 
order  produced  by  one  man's  power,  and  the  soldiery  would 
accept  of  a  supreme  commander;  the  transition  from  the  re- 
public to  the  new  order  of  things  will  not  seem  strange. 

If  a  perpetual  magistracy  like  the  proconsular  or  tribunitian 
had  been  given  to  the princeps  while  the  others  were  filled  as 
before  through  free  popular  election,  there  could  have  been 
no  stability  or  vigor  of  administration.  The  more  important 
powers,  therefore,  by  formal  consent  of  the  people,  were 
heaped  up  upon  the  new  head  of  the  state.  To  the  proper 
name  of  Octavianus,  was  added  the  cognomen  of  Augustus, 
an  old  word  not  differing  much  in  sense  from  sanctus,  and 
used  in  the  sphere  of  religion.  His  principal  functions  were 
the  proconsular,  by  virtue  of  which  the  provinces  were  put 
under  his  control;  and  the  tribunitian,  which  made  him  invio- 
late, and  took  away  from  him  rivals,  such  as  the  former  tri- 


506  POLITICAL   SCIENCE. 

bunes  had  been  in  relation  to  the  consuls.  The  consulate 
seems  to  have  been  the  office  to  which  the  principate  at  first 
was  designed  to  be  attached,  but  it  was  afterwards  filled  by 
the  emperors  only  on  occasions,  and  was  generally  conferred 
on  others.  The  censorship  was  sometimes  assumed  by  them, 
and  Domitian  received  it  for  life  ;  but  it  disappears  after  his 
reign.  The  office  of  head  pontiff  passed  over  to  Augustus 
after  the  death  of  the  existing  holder  of  it,  and  was  thence- 
forth associated  with  the  imperial  power.  The  administration 
at  Rome  was  in  the  emperor's  hands.  He  had,  like  the  old 
proconsuls,  his  own  fisc,  and  with  it  important  censorial 
control  over  the  revenues  of  the  state  ;  the  command  of 
the  army  went  with  the  proconsular  power  and  the  im- 
pcrium.  The  power  of  making  "  constitutiones"  whether 
general  (edicts)  or  special,  was  lodged  formally  in  his  hands, 
at  the  commencement  of  his  reign.  He  was  in  a  sort  the 
supreme  judge,  and  to  him,  as  proconsul,  appeals  were 
directed. 

The  senate,  according  to  the  original  idea,  was  to  share  the 
government  with  the  prince  ;  but  this  was  only  an  illusion, 
as  Mommsen  calls  it,  and  the  direct  as  well  as  indirect  con- 
trol of  the  early  emperors  over  this  body  made  them  little 
more  than  his  creatures.  Domitian  at  length  joined  to  the 
principate  the  formal  power  of  constituting  the  senate  at 
will.* 

As  the  emperor  or  princeps  succeeded  to  older  officers  and 
engrossed  their  power,  so  he  was  formally  acknowledged  by 
the  senate  and  elected  by  the  people.  This  indeed  was  little 
more  than  a  form,  but  the  Romans  had  a  remarkable  attach- 
ment to  forms  when  the  spirit  had  left  them.  The  tribunitian 
power  was  conferred  in  the  following  manner  (Mommsen,  u. 
s.,  ii.,  2,  815)  :  after  a  decree  of  the  senate  one  of  the  magis- 

*  We  have  used  in  this  sketch,  part  2  of  vol  ii.,  of  Mommsen's 
Rom.  Staatsr.  (Leipz.,  1875),  and  acknowledge  our  obligations  to 
this  great  scholar,  as  also  to  Marquardt  for  his  contributions  to  Rom. 
Antiq.  both  in  the  earlier  work  of  Becker  completed  by  him  and  in 
the  new  one. 


MONARCHIES.  $°7 

trates,  probably  one  of  the  consuls  in  office,  brought  a  roga- 
tion before  the  comitia  and  probably  before  the  centuries, 
indicating  the  name  of  the  person  and  his  competence  or  ex- 
tent of  authority  ;  and  on  this  the  comitia  decided  by  vote. 
Thus  in  this  act  senate  and  people  co-operated;  and  between 
the  decree  and  the  comitia,  the  regular  time  from  a  market 
day  to  the  next  but  one  after,  transpired  (about  17  days). 
A  part  of  the  law  conferring  authority  on  Vespasian  is  still 
extant  on  a  brass  tablet.  It  contains  this  clause,  "  that  what- 
ever things  have  been  done,  transacted,  decreed,  commanded 
by  the  imperator  Caesar  Vespasian  Augustus,  or  by  any  one  by 
his  bidding  or  commission,  those  things  shall  be  just  and 
valid  to  the  same  degree  as  if  they  had  been  done  by  the 
bidding  of  the  populus  or  the  plebs."  Of  course  the  soldiers, 
or  some  unconstitutional  power,  often  created  the  emperor; 
but  the  form  seems  to  have  been  deemed  necessary.  Tacitus 
says  (hist.,  i.,  47),  that  "  the  tribunitian  power  was  decreed  to 
Otho,  with  the  name  of  Augustus  and  all  the  honors  of  the 
princes."  The  same  recognition  of  Vitellius  and  of  Domi- 
tian  by  the  senate  is  on  record.  In  the  life  of  the  emperor 
Tacitus  (Flav.  Vopisc.,§§  3-7),  his  nomination  in  the  senate 
is  narrated  at  length.  After  this  they  all  went  to  the  Campus 
Martius,  where  the  prefect  of  the  city  addressed  the  people 
— the  assembly  is  called  milites  ct  Quirites — telling  them 
that  they  had  a  prince  whom,  in  compliance  with  the  opinion 
of  all  the  armies,  the  senate  had  chosen.  The  acclamations 
of  the  people  wishing  him  blessings  ("  dii  te  servent"  et 
reliqua  quae  solent  diet)  closed  the  scene.  This  looks  as 
if  in  the  third  century  (275,  A.  D.)  the  elections  had  become 
mere  acclamations,  like  the  confirmation  of  bishops  by  the 
laity. 

Any  person  was  eligible  to  the  imperial  office  ;  but  if  he 
were  not  of  patrician  birth,  it  was  thought  necessary  to  pro- 
cure his  adoption  into  some  patrician  family. 

The  princeps  was  under  the  law,  as  is  shown  by  the  votes 
according  to  which  he  had  special  exemptions  from  certain 
laws ;  a  fact  which  is  proved  by  the  document  already  men- 


508  POLITICAL   SCIENCE. 

tioncd  conferring  power  on  Vespasian.*  As  this  dispensing 
power  passed  over  to  the  emperor  himself,  he  himself  could 
naturally  act  in  violation  of  any  law  from  which  dispensation 
was  allowable.  In  this  sense  he  could  be  said  to  be  free  from 
the  control  of  law  {legibus  solutus). 

Once   or  twice  in   the  earlier  empire  a  son  was  made  co- 
emperor    with   his   father,  and  bore  the  title  of 

Later  Empire.  _  ., 

Augustus.  M.  Aurehus  associated  thus  with 
himself  his  son  Commodus  (177  A.  D.),  after  the  death  of  L. 
Verus,  his  partner  in  power.  Afterwards  this  co-principate 
was  frequent,  and  from  Diocletian  on  was  almost  a  necessary 
part  of  the  constitution.  Thus  the  hereditary  principle 
strove  to  establish  itself,  or  at  least  the  effort  was  to  secure 
the  same  family  in  possession  of  the  empire.  But  on  the 
death  of  Julian  a  new  man  was  set  up  as  emperor  by  officers 
of  the  army,  and  again  on  the  death  of  Valens  another  new 
man,  Theodosius  the  great,  was  co-optated  by  Gratian.  The 
new  principle,  so  far  as  it  had  a  sway,  shows  the  increasing 
power  of  the  emperor  in  determining  the  succession.  It  is 
now  more  and  more  taken  from  the  hands  of  the  senate  and 
people,  even  in  form.  By  his  new  seat  of  empire  at  Byzan- 
tium, Constantine  both  acknowledged  the  necessity  of  divid- 
ing the  government  and  also  broke  away  from  the  traditions 
that  clustered  around  Rome  as  the  centre.  The  administra- 
tion also  was  changed  in  an  important  respect  by  separating 
civil  and  military  jurisdiction,  by  abolishing  the  office  of  pre- 
fect of  the  praetorium  at  Rome,  and  by  the  official  ranks  of 
nobility  which  were  now  instituted.  The  conception  of  im- 
perial power  was  raised  ;  before  Diocletian,  the  emperors 
were  considered  to  be  ultimate  proprietors  of  the  soil  in  the 
provinces  but  not  in  Italy  ;  now  "  a  property  of  the  state, 
strictly  such  and  distinct  from  the  property  of  the  dominus,  is 

*  Line  22  et  seq.,  in  Mommsen,  p.  711,  and  in  Zell's  Rom.  Epi- 
graphik,  "  utique  quibus  legibus  plebeive  scitis  scriptum  fuit,  ne  di- 
vus  Augustus,  Tiberiusve  Julius  Caesar  Augustus,  Tiberiusque 
Claudius  Caes.  Aug.  tenerentur,  iis  legibus  plebisque  scitis,  Imp. 
Ca<js.  Vespasianus  solutus  sit." 


MONARCHIES.  509 

no  longer  known."*  The  religious  idea  came  in  to  modify 
and  in  part  to  increase  the  emperor's  absolute  authority.  He 
had  been  sacred  before,  and  an  object  of  almost  divine  honors  ; 
but  now,  in  the  change  of  religion,  he  derived  his  power 
immediately  from  God,  and  the  moral  sanction  of  Christianity 
made  disobedience  to  him  a  greater  crime  than  it  had  been, 
even  an  offence  against  the  Divine  Being.  From  the  conver- 
sion of  Constantine  onward,  the  emperor  took  upon  him  the 
control  of  religious  affairs.  In  the  east,  men  like  Heraclius 
prescribed  articles  of  faith  on  the  most  abstruse  points,  and 
for  the  most  part  found  feeble  opponents  in  the  secular 
clergy.  Only  the  monks  made  an  active  and  obstinate  oppo- 
sition. As  time  went  on  in  the  eastern  empire,  as  well  the 
effect  of  Roman  law  in  destroying  freedom  as  the  mechanical 
administration  of  affairs  sunk  the  spirit  and  lowered  the 
energy  of  the  people  more  and  more.  Perhaps,  too,  the 
loss  of  liberty  and  of  a  free  spirit  before  the  Roman  empire 
began,  both  in  Greece  and  the  east  in  the  times  of  Alexander, 
ought  to  be  brought  into  account,  when  we  seek  for  reasons 
for  the  servility  and  the  decline  of  public  virtue  in  the  Byzan- 
tine empire.  It  was  not  merely  the  result  of  a  tyrannical 
government,  but  the  effect  of  such  a  government  on  an 
already  decaying  civilization.  The  traditions  of  free  insti- 
tutions were  forgotten  before  the  sombre  despotism  of  By- 
zantium began. 

The  two  French  empires  were  built  on  the  sovereignty  of 
Modem  French    tne  people  even  more   clearly  than  the  empire 
empire-  of  the  Caesars.      The   first   consul  was    elected 

emperor  by  the  nation  in  1804,  and  Louis  Napoleon  reached 
the  same  dignity  by  steps  somewhat  like  those  of  Augustus. 
A  constitution  was  framed  in  1848,  and  Louis  Napoleon 
chosen  president.  Then  in  1851  occurred  the  coup  d'etat, 
the  dissolution  of  the  assembly,  the  restoration  of  universal 
suffrage  and  the  re-election  by  an  immense  majority.  The 
new  constitution  which  by  vote  he  was  allowed  to  make,  be- 

*  Comp.  Mommsen,  u.  s.  ii.,  2,  1009. 


5IO  POLITICAL   SCIENCE. 

longs  to  the  end  of  185 1.  In  this  constitution,  a  responsible 
head  for  ten  years,  a  council  of  state,  a  legislative  body- 
chosen  by  universal  suffrage,  a  ministry  dependent  on  the 
executive,  and  a  "  second  assembly  formed  of  the  most  il- 
lustrious men  of  the  nation,  as  a  counter-balancing  power," 
were  the  principal  machinery  of  the  government.  In  this 
constitution  the  senate  could  propose  modifications  of  the  con- 
stitution, which  were  to  be  submitted  to  universal  suffrage. 
Accordingly  this  body,  by  a  senatus  consultum  of  Nov.  J, 
1852,  established  anew  the  dignity  of  emperor  in  the  person 
of  Louis  Napoleon  and  his  direct  legitimate  descendants  ; 
and  this  was  submitted  to  and  confirmed  by  a  vote  of  the 
French  people  in  the  same  year.  The  empire  came  to  its 
end  in  1870.  Like  the  Roman  principate  it  owed  its  birth  to 
civil  dissension  and  the  desire  of  security,  and  fell  into  the 
hands,  like  that,  of  a  relative  of  the  overturner  of  the  repub- 
lic. Like  that,  also,  it  was  in  its  management  governed  by 
a  policy  in  which  the  endeavor  to  secure  and  perpetuate  it- 
self was  the  leading  motive  ;  but  being  feeble,  cunning  and 
profligate,  and  having  formidable  enemies  to  contend  against, 
with  no  respect  felt  for  it,  but  rather  hated  within  and  sus- 
pected without,  it  quickly  fell. 

§  167. 
There    is  yet  another   type    of  absolute   monarchy  which 
Tyranny  in  city-  needs  to  be  considered — the  tyranny  which  has 
sutes'  appeared  in  city-states.    Examples  may  be  drawn 

from  the  Greek  and  the  mediaeval  Italian  republics.  The  latter 
had  a  nominal  dependence  on  the  German  emperors  after  they 
had  reached  their  independence,  but  may  be  regarded,  like 
the  Greek  tyrannies,  as  entirely  self-governing  for  all  practical 
purposes.  Of  Greek  tyrannical  governments  there  were  two 
eras  ;  the  first,  while  aristocracies  were  the  governing  powers 
in  the  cities  ;  the  second,  in  the  time  of  the  decay  of  the  democ- 
racies, and  when  mercenary  troops  could  be  hired  by  an  am- 
bitious chief  to  subjugate  his  townsmen.  The  Italian  tyran- 
nies were  greatly  aided  by  the  same  practice  of  raising  troops 


MONARCHIES.  5  1  r 

and  fighting  the  wars  of  princes.  Some  of  the  first  tyrants 
were  themselves  condottieri.  If  historical  order  could  here 
be  followed  to  advantage,  the  first  Greek  tyrannies  would  fol- 
low the  aristocracies,  as  they  grew  out  of  them  ;  the  others 
would  range  themselves  after  the  decay  of  popular  self-gov- 
ernment and  of  self-government  in  general  in  that  country. 
The  Italian  grew  out  of  the  claims  of  the  emperors  over  the 
towns,  the  machinations  of  the  popes,  and  the  disorders  of 
the  towns  themselves  ;  and  they  need,  in  order  to  be  fully 
understood,  to  follow  the  section  on  city-states. 

The  first  Greek  tyrannies  arose  when  the  old  kingly  author- 
ity was  undermined  by  the  increasing  influence 

Greek   tyrannies.  .  . 

of  an  anstocratical  class,  and  the  common  peo- 
ple were  beginning  to  be  a  power  in  the  state.  Athens  may 
serve  for  an  example,  as  having  had  a  development  under 
the  influence  of  slowly  working  causes.  To  the  change  of 
the  supreme  magistrate's  name  from  basileus  to  archon,  and 
to  the  shortening  of  the  arckoris  term  of  office,  we  have  al- 
ready referred.  An  aristocracy  was  all  along  growing  in 
power,  but  Athens  was  as  yet  without  mobile  elements.  It 
is  probable  that  with  the  old  name  the  religious  functions  of 
the  king  ceased,  and  that  the  cupatridce  acquired  a  control  in 
the  administration.  Next  follow  the  time  of  annual  archons, 
nine  in  number,  and  eligible  from  the  whole  of  the  aristocratic 
families.  The  kingly  office  having  now  altogether  come  to 
an  end,  there  was  no  uniting  or  controlling  principle  among 
the  chief  members  of  the  aristocracy,  while  traditions  and 
examples  of  the  power  of  one  man  tempted  the  boldest  to 
seek  to  establish  a  new  dynasty.  Pisistratus  and  his  two 
sons  were  the  tyrants.  Taking  advantage  of  the  local  parties 
in  Attica  and  playing  the  role  of  a  most  accomplished  dema- 
gogue, Pisistratus  was  enabled  to  get  the  better  of  his 
eupatrid  foes  ;  but  his  three  expulsions  show  how  nice  was 
the  balance  of  parties  ;  he  was  indebted  for  his  renewal  and 
continuance  of  power  to  their  dissension,  and  to  his  ingrati- 
ating himself,  by  real  services  and  wise  mildness,  in  the  favor 
of  the  people.     The  crimes  and  despotical  temper  of  the  sons, 


512  POLITICAL  SCIENCE. 

with  assistance  from  abroad  to  the  disaffected  eupatridae,  pro- 
cured the  downfall  of  the  family. 

Of  some  of  the  other  tyrannies  belonging  to  this  period 
(from  700  to  500  B.  c.)  we  will  let  Aristotle  speak.  "The 
least  stable  of  governments  are  tyranny  and  oligarchy.  The 
longest  tyranny  was  that  of  Orthagoras  and  his  descendants 
in  Sicyon,  which  continued  a  century.  The  reason  for  this 
length  of  rule  was  that  they  treated  those  whom  they  ruled 
with  moderation,  and  in  many  things  were  obedient  to  the 
laws.  Clisthenes,  of  Sicyon,  again,  on  account  of  his  ability 
in  war,  was  not  a  man  to  be  despised  ;  and  to  a  great  degree 
this  line  of  tyrants  played  the  part  of  demagogues  in  their 
cares  for  the  people.  Clisthenes  is  said  even  to  have  crowned 
the  man  who  decided  against  him  in  regard  to  a  victory  in  pub- 
lic games,  and  some  say  that  the  statue  placed  in  the  agora  (of 
Sicyon)  is  the  image  of  him  who  gave  that  decision.  They 
say  also  that  Pisistratus  once  bore  it  patiently,  when  sum- 
moned in  a  suit  before  the  court  of  Areopagus.  The  next 
longest  of  the  tyrannies  is  that  of  the  Cypselidse  at  Corinth, 
for  this  lasted  seventy-three  years  and  six  months  ;  Cypselus 
reigned  thirty  of  these,  and  Periander  forty-four,  (?)  Psammeti- 
chus,  son  of  Gordius,  three  years.  The  reasons  for  the 
length  of  this  tyranny  were  the  same  that  we  have  already 
spoken  of;  Cypselus  was  a  demagogue,  and  at  the  first  con- 
tinually went  without  a  guard  ;  Periander  became  despotical, 
but  had  military  talent.  The  tyranny  of  the  Pisistratidae  was 
the  third  in  length,  but  was  not  continuous  ;  for  twice,  while 
Pisistratus  was  tyrant  of  Athens,  he  had  to  go  into  exile  ;  so 
that  his  sway  occupied  seventeen  years  only  out  of  thirty- 
three,  and  that  of  his  children,  eighteen — thirty-five  years  in 
all.  Of  the  other  tyrannies  that  of  Hiero  and  Gelo  at  Syra- 
cuse, was  the  longest.  It  did  not,  however,  last  for  many 
years,  but  only  for  eighteen  in  all.  For  Gelo,  after  reigning 
seven  years,  died  in  the  eighth  ;  Hiero  reigned  ten,  and  Thra- 
sybulus  was  driven  out  in  the  eleventh  month."  (Pol.,  viii., 
or  v.,  9,  §§  21-24.) 

Many  of  these  tyrants  were  men  who  advanced  culture, 


MONARCHIES.  513 

showed  great  public  spirit,  and  patronized  learning :  they 
were  neither  remarkably  suspicious  nor  cruel,  but  their  fami- 
lies declined  in  character,  and  paved  the  way  for  their  own 
ruin.  They  were  a  passing  phenomenon  in  the  transition  of 
Greece  from  an  aristocratical  to  a  democratical  society.* 
The  later  Greek  tyrannies  grew  for  the  most  part  out  of 

Later  Greek  ty-  national    corruption,    and    marked  the    period 
ranmes.  when  a  want  of  faith,  of  civic  virtue,  and  self- 

restraint,  with  profligacy  and  treachery,  were  reigning  quali- 
ties of  the  Greek  character.  It  was  supported  for  the  most 
part  by  mercenary  soldiers,  as  we  have  already  mentioned. 
The  practice  of  hiring  troops  was  of  much  earlier  origin,  but 
in  the  later  tyranny  it  was  the  main  support  of  the  irresponsi- 
ble despots,  who  gained  power,  not  through  strife  of  oligarchi- 
cal factions,  but  by  mere  force  which  the  city-states  were 
not  strong  enough  to  resist.  The  tyrants  of  Pherae  in  Thes- 
saly,  those  of  Syracuse,  from  Dionysius  I.  to  Agathocles,  and 
later,  Nabis,  tyrant  in  Sparta,  are  specimens  of  this  inferior 
order  of  tyrants,  who  were  nothing  but  poisonous  fungi 
springing  up  on  the  soil  of  moral  and  political  corruption,  f 
What  Aristotle  says  of  the   policy  of  self-preservation  of 

Aristotle  on  ty-  tne  earlier  tyrannies  will  apply  to  all ;  only  the 
later  were  more  cruel  and  profligate,  less  con- 
cerned with  public  prosperity,  more  dependent  on  brute 
force  than  on  getting  the  regards  of  the  people  for  their  con- 
tinuance in  power.  Aristotle  attributes  to  Periander  of  Cor- 
inth many  of  the  maxims  which  these  men  put  into  practice. 
One  was  to  cut  off  all  prominent  and  high-spirited  persons  ; 
to  allow  no  common  feasts  (syssitia),  nor  clubs,  nor  education 
(by  the  public)  ;  to  guard  against  everything  that  could  give 
birth  to  courage  and  confidence  ;  to  keep  men,  as  far  as  might 
be,  from  being  known  to  one  another  ;  to  have  a  watch  on 

*For  the  earlier  tyranni  see,  among  other  writers,  Plass,  die 
Tyrannis,  an  essay  crowned  by  the  royal  soc.  of  Gottingen,  Bremen, 
1852,  vol.  i.,  and  the  historians,  as  Curtius,  iii.,  250  et  seq.  (Amer. 
ed.),  Grote  in  vols,  iv.,  v. 

f  For  the  later  tyrants  comp.  Plass,  vol.  2,  and  the  historians. 
33 


514  POLITICAL   SCIENCE. 

the  citizens,  so  that  nothing  that  they  were  doing  could  be 
hid,  and  that  they  might  be  accustomed  to  baseness  and 
timidity;  to  employ  spies  and  eavesdroppers,  as  was  the 
practice  in  Syracuse  under  Hiero.  Another  principle  was  to 
keep  their  subjects  poor,  and  in  constant  occupation.  To 
this  Aristotle  ascribes  the  great  works  of  the  tyrants  of  Si- 
cyon,  Athens  and  Samos.  So  they  wore  down  their  subjects 
by  heavy  taxes.  In  five  years  Dionysius  (the  first)  absorbed 
the  property  of  the  Syracusans  in  this  way.  They  resort  to 
war  (he  continues),  to  keep  the  people  busy  and  create  a  ne- 
cessity for  a  leader.  The  tyrant  distrusts  his  friends,  knowing 
that  all  wish  to  overthrow  him,  and  that  they  are  best  able 
to  effect  this.  The  vices  of  extreme  democracy  are  all  of  a 
tyrannical  sort ;  among  others  the  flatterer,  in  the  shape  of  a 
demagogue,  is  to  the  people  as  humble  courtiers  to  tyrants. 
Men  of  a  free  and  self-respecting  nature  are  hated  and  feared 
by  him.  He  admits  to  his  table  and  his  familiarity  strangers 
rather  than  citizens  ;  these  being  natural  enemies  and  those 
not  likely  to  oppose  him.  All  these  particulars  Aristotle 
sums  up  under  three  heads.  The  first  is,  that  tyrants  aim  at 
debasing  the  spirit  of  their  subjects,  for  a  mean-spirited  per- 
son will  plot  against  nobody  ;  the  second,  that  they  aim  to 
breed  distrust  of  one  another  among  the  citizens.  Thus  they 
are  at  war  with  men  of  worth  as  being  hostile  to  their  gov- 
ernment, not  only  because  such  persons  disdain  to  be  gov- 
erned in  a  despotical  way,  but  also  because  they  are  trusted 
in  by  others,  and  are  incapable  of  treachery  and  false  accu- 
sation. Their  third  aim  is  to  keep  their  subjects  inefficient 
and  feeble  ;  for  in  this  condition  to  attempt  to  overthrow  the 
tyranny  would  appear  to  them  a  thing  impossible.  (Pol.,  viii., 
or  v.,  9,  §§  1-9.) 

Aristotle,  in  a  passage  which  may  be  compared  and  con- 
AHstotie  on  the  ty-  trasted    with   Machiavelli's  Prince,  shows  how 

rant's    keeping    his  ...  a  1 

power.  the    tyrant    may  maintain  his  power.     As  the 

"  basileia  "  (limited  monarchy)  can  ruin  itself  by  becoming 
more  tyrannical,  so  the  tyranny  can  save  itself  by  becoming 
more  like  the  "  basileia"  if  it  hold  on  to  one  thing,  to   wit, 


MONARCHIES.  5  I  5 

its  power, — that  it  rule  over  its  subjects,  whether  they  will  or 
not  ;  for  if  it  gives  up  this,  it  gives  up  its  tyrannical  sway. 
This  secured,  the  tyrant,  in  act  and  in  seeming,  must  play 
the  kingly  character  well.  Thus  he  must  seem  to  have  a  care 
for  the  public  interests,  must  render  account  of  receipts  and 
expenses,  must  use  his  revenues  without  wasting  them  on 
courtesans,  strangers,  and  artists  ;  must,  in  raising  imposts, 
appear  to  do  it  for  the  administration  of  affairs,  as  the  guar- 
dian and  treasurer  of  the  public  property  and  not  of  his  own. 
He  must  not  appear  morose,  but  grave  ;  must  keep  all  his 
retinue  from  outrages  toward  the  young  of  either  sex  ;  must 
keep  the  women  of  his  house  from  insults  toward  other 
women,  since  such  conduct  has  destroyed  many  tyrannies. 
He  ought  not  to  show  to  the  people  that  he  is  addicted  to 
pleasures  ;  for  if  he  does  this  they  will  despise  him.  He 
should  embellish  the  city  where  he  lives,  as  being  a  guardian 
and  not  a  tyrant."  "  He  should  seem  to  be  zealous  in  things 
pertaining  to  the  worship  of  the  gods,  for  people  have  less 
fear  of  being  injured,  if  they  think  the  ruler  a  religious  man 
and  inclined  to  pay  due  honor  to  the  gods,  and  they  plot  the 
less  against  him  as  having  even  the  gods  for  his  allies.  But 
he  ought  to  be  such  without  silly  weakness."  Then,  after 
other  cautions  of  less  importance,  he  adds,  in  summing  up, 
that  the  tyrant  must  appear  to  his  subjects  to  be  not  a  des- 
potical  but  an  administrative  and  a  kingly  man  ;  not  a  seeker 
but  a  guardian  of  his  own  interests,  and  to  have  the  spirit  of 
moderation  and  not  of  excess.  He  must  keep  company  with 
distinguished  persons  and  must  court  the  people.  He  ought 
to  be  in  his  character  either  well  affected  toward  virtue  or 
half-good,  and  not  bad  but  half-bad.  And  yet  of  all  the 
polities,  oligarchy  and  tyranny  are  the  least  lasting  (u.  s. , 
§§  10-21). 

The  mediaeval  tyrants  appear  in   northern  Italy,  where  the 
cities  became  so  far  independent  as  to  be  able 

Italian  city-tyrants.  ,  ,  r  .  . 

to  pass  through  an  almost  free  development. 
The  peace  of  Constance  between  Frederick  I.  and  the  Lom- 
bard towns  in  1183,  provided  that  all  their  immemorial  rights 


516  POLITICAL  SCIENCE. 

should  be  continued,  including  the  right  of  war  and  fortifica- 
tion and  the  administration  of  justice.  For  a  sum  of  money 
the  rights  they  had  newly  usurped  were  to  be  retained.  In 
those  towns  where  the  bishop  had  had  a  count's  jurisdiction 
he  was  to  have  the  right  of  investing  consuls  with  their  power, 
if  he  had  actually  exercised  that  right  at  the  time  of  making 
the  treaty.  In  the  other  towns  the  emperor  gave  to  the  su- 
preme magistrates  their  official  power,  but  their  investiture 
was  to  be  gratuitous.  Magistrates  and  vassals  were  to  swear 
the  feudal  oath  of  allegiance.  Appeals  were  to  be  to  the  em- 
peror or  his  supreme  judge,  except  in  small  cases.  Disputes 
of  a  town  or  of  its  citizens  with  the  emperor  were  to  be  de- 
cided according  to  the  law  and  customs  of  the  land,  and  in 
the  emperor's  court,  if  he  were  in  Italy.  When  he  came  into 
Italy  they  were  to  furnish  provisions,  and  repair  roads  and 
bridges. 

This  peace  made  the  emperor's  rights  over  the  cities  of 
very  little  importance,  and,  by  weakening  the  league  against 
him  which  was  intended  for  their  mutual  protection,  left  them 
free  to  pursue,  each  for  itself,  its  own  course.  Feuds  arose 
between  the  towns,  and  ere  long  the  whole  country  was  con- 
vulsed with  the  strife  between  the  Guelphs,  or  originally 
papal,  and  the  Ghibellines,  or  imperial  party.  In  the  thirteenth 
century  wars  were  waged  between  neighboring  states  accord- 
ing as  they  espoused  one  side  or  the  other.  Thus  the  house 
of  Este  of  Ferrara  were  at  enmity  with  Ghibelline  baillis  of 
Bazzano;  the  Ezzelino  da  Romano  and  Genoa  with  the  Mar- 
quises of  Montferrat  of  the  same  party.  The  tendencies  of 
the  more  prosperous  towns  were  towards  the  increase  of  power 
in  the  lower  class,  the  members  of  the  lower  guilds,  and  the 
operatives.  Out  of  the  strife  of  factions  and  of  classes  the 
tyrants  arose,  by  availing  themselves  of  the  power  put  into 
their  hands,  as  heads  of  the  government  in  the  cities,  or  by 
the  use  of  mercenary  troops  whom,  with  themselves,  they 
hired  out  to  cities  or  leaders  of  factions.  From  these  siguori, 
chosen  to  be  at  the  head  of  affairs  in  the  towns,  and  these 
condottieri,  arose  the  brood  of  Italian  tyrants  in  the  fourteenth 


MONARCHIES.  517 

and  fifteenth  centuries,  such  as  the  Visconti    and  Sforzas  in 
Milan,  the  Langoschi  in  Pavia,  the  da  Gonzagas  in  Mantua, 
the  della  Scalas  in  Verona,  da  Carraras  in  Padua,  and  others. 
Milan  may  be  taken  as  an  example  of  the  rise  of  such  dy- 
nasties.     After   the    fall  of  the    Hohenstaufen 

Milan.  -»r>\        1  i  1 

(1268),  the  papal  party  was  quite  in  the  ascend- 
ant, but  the  old  feuds  were  fomented  by  occasional  visits  to 
Italy  made  by  the  German  emperors.  In  131 1  the  emperor 
Henry  of  Luxemburg,  helped  the  Ghibellines  in  Milan,  under 
Matteo  Visconti,  to  drive  out  the  head  of  the  Guelphs,  of 
the  family  of  della  Torre.  Both  families  were  of  noble  ex- 
traction, and  had  taken  the  popular  side  against  the  upper 
class  and  the  nobility.  Matteo  Visconti  had  been  banished 
from  Milan,  and  with  the  Pisans  invited  Henry  VI.  into  Italy 
(a.  d.  1310).  His  arrival  was  the  signal  for  insurrections  of 
the  Ghibellines,  who  now  again  acquired  ascendency  in  many 
of  the  towns.  Matteo  became  imperial  vicar  in  Lombardy  ; 
the  house  rose  to  great  prosperity,  and  Giovanni  Galeazzo, 
having  a  large  part  of  Lombardy  under  his  sway,  induced  the 
emperor  Wenceslaus,  in  1495,  to  make  him  hereditary  duke  of 
Milan,  with  the  dignity  of  a  prince  of  the  empire.  He  is  said 
to  have  meditated  the  establishment  of  an  Italian  kingdom  of 
his  own,  which  would  not  have  been  much  more  of  a  usurpa- 
tion of  imperial  rights  than  had  been  submitted  to  before. 
His  son,  Giammaria,  a  tyrant  in  temper  and  in  his  govern- 
ment, was  murdered  in  1412.  Under  his  successor  Phillippo 
Maria,  Francesco  Sforza,  the  great  condottiere,  was  taken  in- 
to the  service  of  Milan  in  i425  ;  he  became  the  duke's  son- 
in-law  in  1441,  and,  on  the  death  of  the  latter  in  1449,  was 
appointed  by  the  Milanese,  who  had  then  restored  the  old 
government,  to  be  their  captain.  A  quarrel  ensued  soon  after- 
wards between  him  and  them  ;  he  besieged  and  took  Milan, 
and  was  accepted  as  their  duke  in  1450.  The  successor  of 
this  very  able  man,  his  son,  Galeazzo  Maria  Sforza,  after  ten 
years  of  tyrannical  rule,  was  assassinated  in  1476.  He 
tequalled,  if  not  surpassed  in  his  atrocities,  the  worst  Greek 
yrants.     The  dynasty,  and  the  separate  existence   of  Milan, 


518  POLITICAL   SCIENCE. 

ended  in  1500,  when  it  was  conquered  by  Louis  XI.  of 
France. 

The  progress  of  things  in  Milan,  from  the  condition  of  a 
town  of  the  empire  under  the  direct  sway  of  a  bishop,  through 
self-government  and  strife  of  classes  towards  a  greater  con- 
trol of  the  lower  people,  and  ending  in  the  nearly  irresponsi- 
ble rule  of  a  series  of  hereditary  tyrants,  is  enough  to  show 
the  tendencies  in  a  number  of  Italian  towns.  Their  state  was 
worse  than  that  of  the  Greek  communities  under  a  similar 
government.  The  quarrels  of  pope  and  emperor,  the  intes- 
tine feuds  of  the  strata  of  society,  the  rivalry  of  candidates 
for  power,  the  condottieri-system,  gave  the  tyrannical  spirit 
the  opportunity  to  expand,  and  with  other  causes  spread  a 
terrible  demoralization  over  Italy. 

§  168. 
As  we  have  had  occasion  already  to  remark,  even  absolute 
....     .-,   governments  meet  with  some  check  to  their  ca- 

I.imited  and  mixed     o 

monarchies.  price  and  lawlessness   from  old  institutions,  or 

from  the  unwillingness  of  their  servants  to  expose  themselves 
to  vengeance,  or  from  fear  of  rebellion.  The  limits  of  power 
in  limited  monarchies,  on  the  other  hand,  lie  in  the  constitu- 
tions themselves,  and  in  the  existence  of  orders  and  organs 
to  which  a  portion  of  power  is  committed.  Simple  govern- 
ments, like  pure  democracies  in  which  there  are  no  orders, 
may  contain  checks  upon  the  political  powers  in  their  frame- 
work of  government,  and  others  of  a  practical  kind  in  the 
people's  sense  of  its  interests.  But  limited  monarchies  must 
find  their  checks  not  only  in  their  constitutions  but  in  the  actual 
strength  of  those  political  powers  which  are  able  to  resist  or 
counterbalance  the  leading  power  of  the  state.  Mixed  mon- 
archies are  something  more  than  limited  ones,  as  we  have 
already  seen.  There  may  be  a  limited  monarchy  where  king 
and  people,  the  former  restricted  by  a  constitution,  the  latter 
organized  and  invested  with  certain  means  of  preventing  ille- 
gal government,  are  the  only  forces.  This  may  be  called 
mixed,  perhaps,  yet  the  term  rather  inclines  to  embrace  only 


MONARCHIES.  519 

such  states  as  have  three  or  more  political  powers,  as  king, 
nobles,  and  people,  united  in  the  government,  or  the  same 
powers  with  the  clergy,  as  in  many  mediaeval  states.  Thus 
all  mixture  contains  limitations,  but  all  limited  governments 
are  not  mixed.  It  may,  therefore,  be  said  with  some  justice, 
that  a  mixed  government  contains  institutions  naturally  be- 
longing to  one  form,  which  are  introduced  into  another,  as 
those  belonging  to  aristocracy  or  democracy  into  monarchy, 
while  limits  or  checks  are  provisions  which  may  be  introduced 
alike  into  either  of  the  three  forms,  or  into  any  other  form 
that  may  be  laid  down.  Thus  the  securities  of  English  liberty, 
such  as  the  habeas  corpus,  the  necessity  of  special  warrants, 
the  prohibition  of  quartering  troops,  or  even  such  great  fea- 
tures as  a  constitution  or  a  separation  of  powers,  might  enter 
into  either  of  the  forms  without  taking  it  in  the  least  out  of 
its  category  or  mingling  it  with  any  other  ;  while  local  self- 
government,  or  a  House  of  Lords,  or  the  overcoming  of  the 
king's  veto,  as  in  Norway,  by  three  successive  storthings,  is 
a  mingling  of  forms,  properly  understood  ;  it  is  not  like  a 
break  or  check  on  a  movement  of  a  simple  form  of  govern- 
ment, but  more  like  setting  two  rulers  on  the  throne,  or  divid- 
ing power  among  the  forces  of  society.  Whether,  indeed, 
practically  such  a  distinction  is  worth  anything  more  than  a 
passing  notice,  we  may  well  doubt.  This,  however,  deserves 
to  be  remarked,  that  elements  entering  into  forms  of  govern- 
ment, increase  in  strength  or  in  weakness  through  the  rise  or 
the  fall  of  social  forces.  Thus  we  may  conceive  of  a  nobility, 
represented  in  the  government  of  a  state,  becoming  so  weak 
that  it  is  a  mere  form  and  incapable  of  playing  its  pristine  part. 
Then  to  eliminate  it  is  a  true  policy,  because  it  no  longer 
stands  for  itself  or  represents  some  portion  of  society.  So  a 
free  community  gathers  wealth  and  strength,  has  an  opinion 
circulating  through  it,  and  is  in  a  situation  to  enforce  its  de- 
mands. To  open  the  way  for  it  into  power,  to  mingle  the 
new  elements  thus  supplied  with  the  old  ones,  will  be  a  wise, 
perhaps  a  necessary  thing.  Such  introductions  of  new  powers 
may  be  said  to  make  a  government,  which  was  pure  or  simple 


520  POLITICAL   SCIENCE. 

before,  mixed  or  complex.  But  to  construct  new  systems  on 
such  a  plan  as  if  the  mixture  were  to  have  the  best  qualities 
of  several  forms,  seems  to  be  a  fantastic  proceeding. 

It  may  sometimes  be  a  matter  of  doubt  by  what  name  a 
government  in  actual  existence  ought  to  be  called,  for  the 
reason  that  it  has  changed  since  its  history  began  by  the  rise 
of  new  interests  and  ideas.  Thus,  what  was  the  Spartan  gov- 
ernment ?  was  it  a  monarchy  under  its  double  line  of  kings, 
with  its  ephori  gradually  growing  to  represent  popular  power, 
and  restraining  the  kings  ;  or  was  it  an  aristocracy  with  two 
heads  ?  What  is  the  British  constitution  at  present,  and  espe- 
cially what  is  the  power  in  it  that  is  actually  supreme  ?  It  is 
not  monarchy  that  is  supreme  in  fact,  nor  aristocracy.  It  is 
not  strictly  what  might  be  called  plutocracy ,  but  it  is  the  will 
of  the  better  class  of  the  community  expressed  through  par- 
liament under  a  prime  minister  at  the  head  of  the  opinion 
that  controls  for  the  time.  In  form  it  is  monarchy,  and  the 
monarch  appoints  the  minister,  but  does  little  else.  And  it 
may  be  that  the  very  best  governments  are  nondescript,  as 
the  most  effective  and  useful  characters  have  a  blending  of 
qualities  which  it  is  hard  to  describe,  or  reduce  to  system. 

%  169. 
We  begin  our  remarks  on  monarchical  forms  with  elective 
Elective  monar-    monarchies.      Probably  a  great  part  of  the  early 
chies-  kings  were  chosen  or  in  some  way  accepted  in 

the  first  instance  ;  but  the  hereditary  principle  is  so  strong, 
and  the  king's  motives  to  secure  the  succession  to  his  fam- 
ily, so  great,  that  few  continued  true  to  this  principle.  And 
it  is  unnecessary  to  say  that  a  despot  may  be  elected  ; 
and  that  election  only  implies,  in  regard  to  the  sovereign's 
power,  that  those  to  whom  the  choice  belongs  will  naturally 
make  some  capitulations  with  him  in  regard  to  their  rights 
or  their  privileges.  The  hope  also  of  securing  election  for  a 
son  is  some  pledge  of  the  elected  king's  good  conduct. 

As  for  the  advantages  of  election,  one  is  that  a  man  in 
the  full  vigor  of  life  will  always  be  chosen  ;   thus  the  evils  to 


MONARCHIES.  521 

which  hereditary  monarchy  is  exposed,  from  the  minority 
and  the  feebleness  or  ill-training  of  families  already  in  pos- 
session of  the  throne,  will  be  prevented.  During  520  years, 
as  Sismondi  remarks,  in  his  "etudes  sur  les  Constitutions 
des  peuples  libres  "  (p.  1 57)»  France  was  governed  by  sov- 
ereigns who  had  not  reached  the  age  of  twenty-five, — the 
legal  age, — for  ninety-two  years  ;  and  during  fifty-six  years,  by 
princes  under  twenty-one.  A  long  minority  is  apt  to  be  a 
time  of  weakness,  intrigue  and  danger.  And  again,  Charles 
VI.  of  France  was  deranged  for  many  years,  during  which 
the  kingdom  suffered  untold  evils  in  consequence.  It  is  to 
be  added  to  these  facts  that  the  families,  to  which  sovereigns 
must  look  for  wives  according  to  the  usage  of  Europe,  are 
few  in  number.  There  is  great  danger  from  this  breeding  in 
and  in,  that  the  lines  will  have  hereditary  diseases  and  weak- 
ness of  intellect,  not  to  speak  of  the  enfeebling  vices  to 
which  the  free  command  of  money  opens  the  way. 

Another  consideration  is  drawn  from  the  disputed  succes- 
sions which  have  convulsed  Europe  in  various  countries. 
The  claims  of  Edward  III.  of  England  against  the  house  of 
Valois  brought  on  the  long  wars  of  England  and  France  in 
the  fourteenth  century,  and  their  sequel  in  the  fifteenth. 
The  war  of  the  Spanish  succession  at  the  beginning  of  the 
eighteenth  century  convulsed  all  Europe. 

But,  on  the  contrary,  the  evils  of  disputed  elections  have 
not  been  small.  The  wars  of  election  in  Germany,  according 
to  Sismondi,  filled  up  a  space  of  forty-three  years,  those  of 
Poland  hardly  thirteen,  those  of  Hungary  ten  (u.  s.  pp.  155, 
158)  ;  but  to  this  ought  to  be  added  the  evil  of  uncertainty 
regarding  the  future. 

An  elective  king  will  also  be  restless  and  full  of  plans,  as 
one  who  has  no  stake  in  the  country  for  the  future,  and  must 
act  according  to  the  leading  of  a  vigorous  nature.  In  con- 
stitutional countries,  where  a  responsible  ministry  carries 
out  public  opinion,  it  is  of  little  moment  whether  the  ruler 
be  a  man  of  great  abilities  :  the  main  thing  is  to  secure  quiet 
and  prosperity,  justice  and  intelligence.     On  the  whole,  the 


$22  POLITICAL  SCIENCE. 

dangers   arising  from  a  new  election  after  an  elected  king's 
death  are  greater  than  any  evils  of  hereditary  monarchy. 
The  principal  elective  monarchies  have  been    Poland  and 
Hungary  in  modern  times,  with  the  Germanic 

Poland.  °       J  ' 

body,  whether  empire  or  confederation.  In 
Germany  the  election  was  apt  to  fasten  on  a  member  of  the 
same  family  with  the  deceased  king.  Thus,  soon  after  the 
last  member  of  Charlemagne's  family  came  the  Saxon,  the 
Salic,  the  Hohenstaufen,  with  short  intervals  ;  then  the  Aus- 
trian family  after  a  long  interval,  but  in  almost  unbroken  suc- 
cession until  a  recent  time,  so  that  the  election  has  been 
rather  a  form  than  a  fact.  But  the  Germanic  body  will  come 
before  us  more  appropriately  at  another  place  ;  election  was 
only  one  of  its  features,  yet  perhaps  it  contributed  to  the 
loose,  disjointed  state  of  the  empire. 

The  limited  elective  monarchy  of  Poland  was  not  the  origi- 
nal form  of  government.  The  family  of  the  Piasts,  as  sove- 
reigns of  a  whole  or  a  part  of  the  country,  succeeded  one  an- 
other by  hereditary  title  from  the  close  of  the  ninth  century, 
until,  on  the  extinction  of  the  family,  the  Jagellons  followed. 
In  orabout  1 139  Boleslav  III.  made  an  arrangement  by  which 
the  eldest  of  the  family  should  occupy  Cracow,  with  a  prece- 
dence or  seniorate  over  the  rest,  and,  with  the  title  of  grand 
duke,  should  represent  the  unity  of  the  kingdom.  This  divi- 
sion of  jurisdictions  broke  up  the  kingdom,  so  that,  although 
it  had  almost  become  an  absolute  monarchy,  it  sank  under 
his  successor  into  great  weakness.  Especially  the  larger 
landholders  gained  power  in  this  time  of  discord  (as  was  the 
case  under  the  grandsons  of  Charlemagne),  by  grants  of  land 
securing  them  as  auxiliaries.  In  13 19  Wladislav  Lokietek, 
duke  of  Cracow,  was  crowned  king  of  Poland,  with  the  con- 
sent of  the  pope  and  of  the  bishops  in  the  country,  who  wished 
to  unite  the  parts  together  into  a  compact  fortress  against 
the  heathenism  of  the  more  eastern  peoples.  Under  his  son 
Casimir  the  Great  (1333  1370),  who  united  Poland  together 
more  completely,  the  nobility  attained  to  greater  power,  es- 
pecially through  their  unions  or  confederations,  now  formed 


MONARCHIES.  523 

for  the  sake,  at  first,  of  self- protection  against  disorder. 
Louis  of  Anjou,  the  nephew  of  Casimir,  and  then  king  of 
Hungary,  who  succeeded  him,  was  obliged,  in  order  to  induce 
the  magnates  to  take  his  part,  to  promise  that  he  would 
have  no  new  taxes  imposed,  would  preserve  all  their  rights 
and  immunities,  would  defray  the  expenses  of  himself  and 
his  retinue  on  journeys,  and  pay  back  to  the  nobles  their 
charges  incurred  in  foreign  wars.  With  Casimir,  the  male 
stock  of  the  Piasts  ran  out ;  after  an  interregnum  and  a  dis- 
puted succession  consequent  on  the  death  of  Louis,  and  after 
an  agreement  on  the  part  of  many  nobles  that  the  king  could 
reside  in  the  land,  a  marriage  was  arranged  between  Hedwig, 
a  granddaughter  of  Casimir,  and  Jagellon,  afterward  known 
as  Wladislav  II.,  grand-prince  of  Lithuania,  who  now  became 
a  professed  convert  from  heathenism  and  king  of  Poland 
(1386).  Thus  a  union  with  Lithuania,  and  the  nominal 
Christianization  of  its  people,  were  secured.  With  this  virtual 
choice  of  the  first  Jagellon  by  the  magnates,  their  privileges 
were  enlarged,  so  that  it  has  been  said  that  the  absolute 
monarchy  of  the  Piasts,  as  it  appeared  under  Wladislav  Lokie- 
tek,  had  now  turned  into  an  oligarchy,  which,  to  secure  itself 
for  the  future,  limited  the  concessions  made  to  the  new  king 
and  queen  to  the  life  of  the  former — a  device  which,  by  ren- 
dering a  capitulation  at  the  beginning  of  each  new  reign 
necessary,  made  the  kingly  office  in  fact  elective.  At  the 
same  time,  the  magnates  obtained  great  extensions  of  their 
privileges.  The  first  Jagellon  reigned  nearly  fifty  years,  to 
1434  ;  his  second  son,  Casimir  II.,  from  1445  to  1492.  Under 
him  the  diet  had  an  essential  control  over  public  affairs  and 
the  kingdom  became  a  republic.  His  three  sons,  who  reigned 
in  succession,  were,  I  believe,  all  elected  by  the  diet.  At 
the  death  of  the  son  of  the  third,  Sigismund  II.,  in  1 573» 
the  male  line  of  the  Jagellons  ran  out;  and  the  royal  election 
was  established,  with  the  provision  that  during  the  lifetime 
of  a  sovereign  his  successor  should  not  be  chosen ;  which 
would  preclude  intrigues  for'  the  choice  of  a  son  as  successor. 
Henry  of  Valois  was  elected,  but  forsook  his  crown  in  a  few 


524  POLITICAL   SCIENCE. 

months  to  appear  in  France  as  Henry  III.  In  1587  John 
Sigismund  of  Sweden,  related  to  the  immediately  preceding 
kings,  was  elected;  and  his  two  sons  followed  him  until  1669. 
The  two  electors  of  Saxony,  father  and  son,  wore  the  crown 
from  1697,  with  an  intermission  until  1763;  then  Stanislas  Au- 
gustus, under  whom  the  first  partition  of  Poland  took  place. 

The  greatest  confusion  reigned  during  many  of  these  years, 
arising  out  of  attempts  of  parties  of  nobles  to  get  their  can- 
didates elected.  The  elections  were  managed  in  the  diet  by 
deputies;  but  multitudes  of  nobles,  who  were  not  deputies, 
were  assembled  with  their  armed  retainers  in  the  neighbor- 
hood. The  diet  drew  into  its  hands  most  of  the  business  of 
the  country,  leaving  little  for  the  king.  They  enacted  laws, 
levied  taxes,  made  peace  and  war,  had  the  raising  of  troops, 
the  coinage  of  money,  naturalization  and  the  power  of  con- 
ferring nobility  in  their  hands.  They  could  sit  only  six 
weeks,  and  could  pass  nothing  but  by  a  unanimous  vote — 
what  was  called  the  liberum  veto.  Poland  thus  gives  us  an 
example  of  a  monarchy  becoming  gradually  more  and  more 
restricted  in  its  powers  by  a  numerous  body  of  nobles;  who 
could  conspire  to  wrest  privileges  from  the  sovereign,  but 
had  no  bond  of  union  among  themselves  that  kept  them  from 
dissensions  which  were  worse  than  those  of  properly  feudal 
kingdoms.  The  monarchy  could  never  have  been  united  and 
consolidated,  unless  the  hereditary  principle  had  presided 
over  its  growth.  The  later  form  of  it,  if  it  deserves  to  be 
called  a  monarchy,  was  anything  but  desirable  ;  it  was  one  of 
the  worst  of  governments,  and  presents  to  us  an  instance  of 
limitation  on  a  bad  principle  and  carried  to  an  extreme  for 
the  interests  of  a  great  governing  class,  while  the  actual  cul- 
tivators of  the  soil  had  no  political  power  Avhatever.* 

Hungary  passed  through  changes  quite  parallel  to  those  of 
Poland,  owing  in  part  to  influences  proceeding 
from  feudal  Europe  in   favor  of  the  encroach- 
ments   of  the    nobility;   in   part   to   the    expiration    of   the 

*  I  have  derived  much  assistance  from  Weber,  Allg.  Weltgesch., 
vol.  viii.,    536-593,  in  this  sketch  of  the  Polish  constitution. 


MONARCHIES.  525 

dynasties  (at  which  junctures  the  nobles  could  make  their 
power  felt  in  choosing  or  rejecting  a  sovereign) ;  and  in  a 
measure  also  to  the  policy  of  the  Church  of  Rome.  Under 
Geisa,  Christianity  got  a  foothold  in  the  land,  and  his  son 
Stephen  (997-1038)  established  the  hierarchy  and  organized 
the  kingdom  with  the  advice  and  consent  of  the  great  per- 
sons civil  and  ecclesiastical.  The  succession  was  to  be 
hereditary,  the  sovereign  to  be  armed  with  full  executive 
powers  over  the  country.  This  was  divided  into  counties 
under  officers,  who,  like  the  counts  of  western  Europe,  were 
heads  of  military  forces  and  chief  judges  in  their  districts  :  in 
other  respects  also  the  feudal  relations  were  copied.  No  order 
of  burgesses  appeared  for  several  centuries,  and  the  grades 
of  the  nobility  had  the  ordinary  contests  with  each  other. 
The  succession  to  the  crown,  while  hereditary,  did  not  pass 
in  course  to  the  next  male  ;  but  rather  it  sometimes  happened 
that  the  king's  son  was  set  aside  and  his  brother  accepted 
in  preference.  Much  confusion  arose  out  of  the  uncertainty 
as  to  who  was  to  be  the  next  king.  Under  Andrew  II. 
in  1222,  the  nobility  received  by  an  instrument  called  the 
"  golden  bull  "  or  book,  privileges  such  as  exemption  from  all 
burdens  except  military  service,  which  they  were  obliged  to 
perform  only  within  the  land,  and  from  forfeiture  of  life  or 
estate  except  by  judicial  trial.  If  the  king  waged  war  out 
of  the  land,  they  were  to  receive  pay  for  voluntary  service. 
A  diet  should  be  held  yearly  in  Stuhlweissenburg,  at  which 
every  nobleman  was  to  appear.  If  the  king  or  any  of  his 
successors  violated  these  privileges,  and  others  given  by  the 
same  instrument,  he  might,  without  breach  of  faith  on  the 
nobility's  part,  be  resisted.  By  an  addition  to  the  "golden 
bull"  in  1 23 1,  the  lower  nobility  and  clergy  were  secured  in 
their  rights  and  the  peasants  were  somewhat  protected. 

In  1 301,  the  male  line  of  the  house  of  Arpad  becoming 
extinct,  Charles  Robert  of  Sicily,  of  the  house  of  Anjou,  a 
descendant  through  his  grandmother,  whose  claims  the  pope 
espoused,  was,  after  a  strife  of  claimants,  accepted  by  the 
VVoiwodes  and  crowned  as  king.      His  son,  Louis  the  Great, 


526  POLITICAL   SCIENCE. 

also  king  of  Poland  (i 342-1 382  in  Hungary),  confirmed  and 
added  to  the  "  golden  bull "  in  a  great  diet  at  Ofen.  Among 
the  new  privileges  were  that  the  allodial  property  of  the 
nobles  might  be  freely  transmitted  to  their  children  and 
relatives,  although  not  be  alienated  by  gift  or  sale  without 
the  king's  consent.  The  privileges  of  the  higher  nobility 
were  extended  to  the  lower.  The  peasantry  also  were  al- 
lowed to  have  the  right  of  free  change  of  abode,  but  were 
made  subject  to  an  impost  of  a  ninth  part  of  their  produce, 
and  were  amenable  to  the  courts  of  the  proprietors  whose 
lands  they  cultivated.  Thus  they  were  brought  down  to  the 
condition  which  the  same  class  then  had  in  other  lands.  The 
death  of  Louis  was  followed  by  long  strife,  until,  in  1403, 
Sigismund,  son-in-law  of  Louis,  and  afterwards  emperor  of 
Germany,  was  acknowledged  as  king.  He  made  important 
changes  in  the  constitution,  especially  by  calling  the  deputies 
of  the  free  towns  and  lower  nobility  to  the  diet,  which  thus 
was  made  to  consist  of  two  houses  or  "  tables  ;  "  that  of  the 
magnates  and  that  of  the  "estates."  The  estates,  however, 
did  not  rise  to  great  influence,  partly  because  the  German 
towns  were  not  united  with  them,  and  partly  because  the 
lower  nobility  took  more  interest  in  the  county  diets  than  in 
those  of  the  kingdom. 

The  house  of  Anjou  died  out  in  1457,  ano'  the  next  year 
Matthias  Corvinus,  son  of  the  great  national  hero  John  Hun- 
yadi,  was  chosen  king.  On  the  death  of  this  accomplished 
king  in  1490,  Ladislas  of  Bohemia,  son  of  George  Podiebrad, 
succeeded  by  election.  His  son,  who  was  chosen  to  succeed 
him  in  15 16,  Louis,  king  of  Bohemia,  perished  in  the  fatal 
battle  of  Mohacz  with  the  Turks,  in  1526,  and  Ferdinand  of 
Austria,  brother  of  Charles  V.,  emperor  of  Germany,  was 
the  successful  candidate  for  the  crown.  The  kingdom  of 
Hungary  from  his  time  was  permanently  united  with  Austria, 
under  a  separate  diet  and  retaining  its  ancient  constitution. 

Bohemia  also  became,  something  like  Hungary,  an  elective 
monarchy,  finally  associated  with  Austria.  The  choice  of 
the  elector  palatine  as  king,  against  the. claims  of  a  member 


MONARCHIES.  527 

of  the  Ilapsburg  house,  brought  on   the  thirty  years'  war, 
which  ended  in  the  overthrow  of  the  former. 

The  election  within  a  certain  family,  involving  the  setting 
aside  of  the  nearest  relative  of  the  deceased  king,  and  even 
deposition  itself,  ran  through  most  of  the  Germanic  states. 
Waitz  says  (Deutsch.  Verfassungsgesch.,  i.,  298,  ed.  2)  that 
no  fixed  right  of  inheritance  obtained  in  the  German  king- 
doms. "  Everything  depended  essentially  on  the  people  ; 
the  people  confirmed,  acknowledged,  chose  the  king.  In  a 
peculiar  manner  a  right  of  inheritance  belonging  to  a  kindred 
and  a  right  of  choice  belonging  to  the  people  are  united 
together.  So  Tacitus  himself  says.*  The  people  of  the 
Cherusci  called  Italicus,  then  a  hostage  from  Rome,  to  be 
their  king.  (Tac.  Annalxi.,  16).  A  cooperation  of  the  people 
in  raising  a  king  to  the  throne,  shows  itself  among  Goths, 
Franks  and  Lombards.  The  king  indeed  recommended  his 
son  or  grandson  to  the  people ;  their  word,  however,  could 
put  another  in  the  place.  The  occasion  for  this  occurs  when 
a  minor  son  is  without  independent  strength.  In  such  a  case 
also  the  people  conceives  the  thought  of  calling  some  other 
to  the  sovereignty.  With  the  people  alone  rests  the  decision 
what  is  to  be  done  if  the  old  line  dies  out,  or  when  a  kingdom 
is  first  founded."  Mr.  Kemble  says  that  "the  elective 
principle  is  the  safeguard  of  their  [the  German]  freedom, 
the  monarchical  principle  is  the  condition  of  their  nation- 
ality" (Anglo-Sax.  i.,  137).  To  these  authorities  I  add 
that  of  Prof.  Stubbs  (Const.  Hist.,  i.,  p.  135).  "Of  all 
elections  the  most  important,  no  doubt,  was  that  of  the  kings  ; 
and  this  belongs,  both  in  form  and  substance,  to  the  witan, 
although  exercised  by  them  in  general  assemblies  of  the 
whole  nation.  The  king  was  in  theory  always  elected  ;  and  the 
fact  of  election  was  stated  in  the  coronation  service  through- 
out the  middle  ages,  in  accordance  with  the  most  ancient 
precedent.      It  is  not  less  true   that    the    succession   was  by 

*  Germ.  §  7.  "  Reges  ex  nobilitate  sumunt."  Choice  is  implied 
whether  we  translate  ex  nobil.  from  out  of  the  nobility,  or  according 
to,  with  respect  to,  their  nobility.     From  Waitz'snote. 


528  POLITICAL   SCIENCE. 

constitutional  practice  restricted  to  one  family,  and  that  the 
rule  of  hereditary  succession  was  never,  except  on  extraordi- 
nary occasions  and  in  the  most  trying  times,  set  aside." 
And  again,  p.  141,  "  the  king  is  elected  by  them  [the  witan~\ 
and  liable  to  be  deposed  by  them.  He  cannot  settle  the 
succession  to  the  throne  without  their  sanction."* 

The  elected  king  appears  in  the  history  of  other  states, 
especially  of  the  Indo-European  stock.  We  have  seen  that 
the  Roman  kings  were  elective,  and  from  no  one  family  ;  the 
/Esymnetse  of  Greece  are  called  elected  tyrants  by  Aristotle, 
as  despots  in  their  power,  and  "  kings  "  by  their  free  election 
(Pol.  iii.,  9,  §§  5,  6).  The  Tagi  of  Thessaly  seem  not  to 
have  been  hereditary.  The  story  in  Herodotus  of  the  elec- 
tion of  De'ioces  may  well  be  a  Greek  invention,  or  may  contain 
distorted  and  colored  facts  (comp.  Grote,  iii.,  307,  308)  ;  but 
it  seems  likely  that  when  the  disconnected  village  communi- 
ties or  the  cantons  felt  it  necessary  to  unite  together,  the 
union  was  brought  about  by  election  in  the  first  instance.  In 
fact,  if  there  were  a  head  over  each  community,  no  other  pro- 
cess could  adjust  their  rival  claims.  Then  the  hereditary 
principle,  which  reigned  in  the  sept  or  village  community, 
where  all  felt  their  relations  to  each  other,  soon  became  cus- 
tomary in  the  monarchy.  But  in  many  parts  the  nobles 
came  at  length  into  conflict  with  the  power  of  the  kings 
and  brought  it  within  their  control  by  election. 

§  170. 

We  see  in  what   has  been  called  elective  monarchy,  the 
aristocracy    curbing    and    controlling   the  kings 

Feudal  monarchy.  ...  e        .. 

by  taking  away  from  them  hereditary  or  family 
right.  In  the  feudal  monarchy  we  have  another  instance  of 
the  weakening  and  limiting  of  that  principle  by  a  landed 
aristocracy,  until  it  parted  with  a  large  share  of  its  power, 

*  Comp.  also  Grimm,  Deutsche  Rechtsalterth,  p.  231,  ed.  1,  and 
Freeman,  Norm.  Conq.,  vol.  i.,  notes  R  and  S,  on  the  right  of  the 
witan  to  depose  the  king  and  on  the  election  of  kings. 


MONARCHIES.  529 

and  the  old  king  became  the  head  of  men  who  were  exercis- 
ing most  of  his  former  rights  in  the  districts  of  a  disintegra- 
ted country.  The  rise,  spread  and  fall  of  the  feudal  system 
form  one  of  the  most  remarkable  chapters  in  the  history  of 
mankind.  We  can  take  into  view  only  its  most  general  fea- 
tures, and  must  leave  out  of  sight  altogether  the  variety  of 
details,  and  of  differences  in  different  parts  of  Europe. 

Under  the  kings  of  the  two  Frank  lines  there  was  a  nation 
owing  obedience  to  the  sovereign  or  sovereigns — for  the 
realm  was  often  divided  up  between  two  or  more  of  the  same 
family — with  general  taxation,  and  counts  having  military 
and  civil  power  as  public  officers  in  their  respective  districts. 
In  process  of  time,  owing  to  the  burdens  of  war  and  the 
distresses  of  the  country,  as  well  as  to  the  grasping  ambition 
of  the  large  proprietors,  the  smaller  landholders  to  a  large 
extent  disappeared,  by  commending  themselves  to  the  more 
powerful,  surrendering  their  lands  and  receiving  them  back 
in  usufruct,  for  the  sake  of  the  protection  furnished  by  the 
strong  societies  gathered  around  civil  or  ecclesiastical  chiefs. 
The  chiefs  (counts  and  others)  themselves  changed  their 
relations  to  the  kings  by  usages  which  had  a  wide  spread. 
These  were  first  bcneficium,  or  the  receipts  of  tracts  of  lands 
in  usufruct ;  second,  vassalage  or  commendation,  by  which 
with  a  simple  form  they  entered  into  the  king's  service  or 
became  his  men  ;  and  third,  exemption  or  immunity ,  that  is, 
the  freedom  from  the  count's  jurisdiction  both  in  the  army- 
ban  and  in  judicial  matters.  The  two  first  of  these  relations 
at  first  appear  separately  ;  a  beneficiary,  it  might  be,  was  not  a 
vassal,  and  vice  versa  ;  and  the  last  of  the  three,  which  devel- 
oped itself  latest  and  was  by  far,  politically  speaking,  the 
most  important  of  all,  was  built  up  on  the  personal  relations 
denoted  by  the  two  others.  The  ecclesiastical  foundations 
were  the  first  to  make  this  privilege  available ;  the  large  lay 
proprietors  followed  them.  When  this  new  order  of  things 
first  began  (which  was  manifestly  due  to  the  weakness  of  the 
kings  and  the  desire  of  the  great  proprietors  to  strengthen 
their  positions),  it  was  not  transmissible  from  father  to  son  ; 
34 


530  POLITICAL   SCIENCE. 

a  great  step  was  gained  by  them  in  securing  this  advantage. 
The  hereditariness  of  benefices  or  fcuda  (fiefs),  as  they  were 
called  in  and  after  the  ninth  century,  is  commonly  ascribed 
to  a  capitulary  of  Charles  the  Bald,  made  a  little  before  his 
death,  at  the  diet  of  Ouiercy  sur  Oise  (Conventus  Carisiacus), 
in  877,  in  which,  if  a  count  should  die  on  the  projected 
Italian  expedition  with  the  king,  leaving  a  young  son,  that 
son  with  the  ministeriales  of  the  county  and  the  bishops  of 
the  diocese,  was  to  have  oversight  of  the  county  until  the 
matter  came  to  the  king's  knowledge.  This,  however,  was 
not  an  absolute  nor  a  universal  provision  ;  it  did  not  alto- 
gether fix  the  hereditary  character  of  benefices  in  the  king- 
dom, and  in  other  parts  of  the  empire  of  Charlemagne  it  had 
no  force.* 

It  took  a  long  time  before  this  system  matured  itself. 
Bcneficia,  at  first,  ended  with  the  life  of  the  grantor  or  of  the 
grantee.  Some  were  for  short  definite  times,  some  for  five 
years ;  others  were  expressly  excepted  from  this  condition. 
The  king  himself,  or  a  female,  or  an  ecclesiastical  corporation 
could  be  a  beneficiary.  The  beneficiary  did  not  need  to 
become  a  vassal.  Vassality,  again,  seems  gradually  to  have 
become  a  distinct  relation  from  commendation.  The  relation 
began  with  placing  the  hands  folded  together  in  the  hands  of 
the  senior  or  protector  and  taking  an  oath  of  fidelity.  Yet 
neither  of  these  forms  was  confined  to  vassality.  We  find 
women,  even  a  king's  wife  or  daughters,  becoming  z'assi, 
and  the  counts  as  well  as  the  bishops  having  persons  under 
their  protection,  called  by  the  name  of  vassi  or  vassalli,  which 
had  no  difference  in  meaning. 

Still  more  gradual  does  the  development  of  exemptions  or 
immunities  (emunities)  seem  to  have  been.  Immunity  from 
taxes  was  much  connected  with  admission  under  the  king's 
protection  and  with  gifts  of  lands  (beneficia)  from  the  king. 
This  indeed  was  nothing  more  than  a  continuance  of  the 
freedom  from  taxes  which  royal  lands  had  had  before.    Such 

*This  is  in  Walter's  Corpus,  iii.,   210,  in  Perz's  Leges,  i.,  539. 


MONARCHIES.  53 1 

immunity  convents  especially  enjoyed  ;  lands,  given  by  the 
king  to  such  foundations  and  to  churches,  had  gener- 
ally this  privilege,  which  probably  the  king  only  could 
confer.* 

The  immunities  under  the  later  Merovingians,  Pippin, 
Charlemagne,  and  the  later  Carolings,  generally  take  the 
form  that  no  public  officer  should  enter  the  court  or  lands  of 
the  foundation,  either  to  institute  judicial  proceedings  there, 
or  to  demand  quarters  or  lodging,  or  take  securities,  or  to 
levy  peace-money,  +  or  to  hold  the  people  pertaining  to  the 
same  to  justice.  The  immunities  affected  the  direct  obliga- 
tions to  military  service  of  small  proprietors  who  had  com- 
mended themselves  to  ecclesiastical  foundations,  and  thus  a 
temptation  was  presented  to  free  men  who,  not  on  account 
of  poverty  but  to  get  rid  of  public  services,  entered  into  this 
relation.  In  825  Lothaire,  son  of  Louis  the  Pious,  tried  to 
prevent  this  by  an  edict  requiring  of  such  persons  "  ut  Jios- 
tem  et  reliquas  publicas  functiones  faciant  .  .  .  quousque 
res  ipsas  possident,"  and  gives  the  counts  the  right  to  dis- 
train upon  them,  the  immunity  notwithstanding.  It  was  on 
the  other  hand  an  important  point  for  the  foundations  to 
have  these  persons  and  their  lands  included  in  the  privi- 
lege. 

Immunity  often  excluded  entrance  of  public  officers  into 
woods  for  hunting  purposes,  and  exemptions  from  customs 
and  tolls  for  highways  and  bridges.  But  three  services  due 
to  the  state,  the  services  in  the  army,  in  watching,  and 
bridge-building,  are  excepted  by  Charlemagne  in  a  note- 
worthy document  (Perz.  Leges,  i.  728).     So  among  the  Sax- 

*  Documents  issued  to  ecclesiastical  foundations  by  nobles,  grant 
it,  either  as  pertaining  to  the  land  already,  or  as  expressing  a  wish, 
which  a  higher  authority  might  confirm.  Forged  documents  are  nu- 
merous in  regard  to  this  immunity,  as  given  to  convents. 

f  The  transfer  of  the  fredus  (fredum  or  freda),  i.  e.  of  the  com- 
position or  fine  for  acts  of  violence,  when  made  payable  from  the  fisc 
by  the  king's  officer  to  the  officer  of  the  count  or  the  religious 
foundation,  shows  that  the  claims  of  the  king's  officer  as  protector 
and  judge  had  ceased. 


532  POLITICAL   SCIENCE. 

ons  in  England  ;  saving  that  among  them  the  trinoda  necessi- 
tas  included  castle-building  instead  of  watching. 

The  exclusion  of  counts  from  certain  premises  and  lands, 
together  with  the  granting  of  court-dues  by  exemption,  led 
first  to  the  usage  that  the  superior,  as  the  head  of  a  convent, 
for  instance,  represented  his  people  in  the  courts  ;  and  this  led, 
in  the  end,  to  separate  jurisdiction,  which  was  lodged  per- 
haps, originally,  in  the  hands  of  officers  nominated  by  the 
king  or  his  deputy,  but  still  was  private  and  belonged  to  the 
land.  Thus  such  immunities,  or  lands  under  immunity,  came 
to  have  the  character  of  territories  or  lordships,  separate  from 
the  body  politic.  Free  men,  with  their  services  to  the  state, 
are  passed  over  to  the  foundations  in  the  documents  instead  of 
being  under  the  king,  and  these  rights  were  sometimes  extend- 
ed to  the  neighborhood  of  the  properties.  This  precedent 
bishops  made  use  of  to  get  towns  under  their  control,  and 
the  grants  of  Pippin  and  Charlemagne,  by  which  towns 
were  granted  to  the  Roman  See,  were  precedents  for  the 
future,  the  effects  of  which  Charlemagne  tried  to  keep  within 
limits. 

Through  the  immunities,  a  territorial  nobility,  consisting 
of  descendants  of  counts,  who  naturally  were  large  landholders 
in  their  county,  or  of  landholders  who  received  immunity 
from  counts'  jurisdiction,  began  to  exist  in  the  Frank  king- 
dom ;  for  no  titular  nobility  is  traceable  among  them  in  their 
early  history.  By  and  by  the  name  count  no  longer  denoted 
a  king's  officer,  but  a  man  having  the  former  political  rights 
of  the  count  on  his  lands,  and  transmitting  them  to  his  son 
or  sons.  The  courts  were  his,  with  right  of  appeal  as  before 
to  the  king,  or  to  his  vicar  the  count  palatine  ;  the  command 
of  his  men  became  his  under  his  flag  ;  much  of  the  adminis- 
tration was  in  his  hands.  At  length  he  grants  charters,  coins 
money,  it  may  be,  acts  as  a  legislator,  receives  the  homage  of 
his  vassals,  has  even  the  right  of  private  war.  Vast  differ- 
ences existed  as  to  the  rights  of  the  feudal  nobility  ;  succes- 
sion was  not  the  same  ;  the  king's  courts  had  powers  in  one 
part  which  they  had  lost  in  another ;  there  were  various  con- 


monarchies.  533 

ditions  of  the  former  unfree  and  of  the  smaller  free  class,  all 
tending  toward  serfdom,  with  various  burdens  determined  by- 
custom  within  the  fief.* 

Again,  in  some  countries,  as  in  France,  nearly  all  property 
took  the  beneficiary  form,  while  in  others,  as  in  Northern 
Germany,  there  were  large  masses  of  allodial  lands  that  stood 
outside  of  the  feudal  system.  So  the  greater  part  of  the  in- 
habitants in  some  parts  became  serfs  or  hereditary  tenants, 
without  power  to  leave  their  lands  ;  but  in  other  parts,  as  in 
Friesland  and  Ditmarsh,  there  were  small  freemen  living  to- 
gether who  always  kept  their  free  proprietorship  from  the 
invasions  of  the  nobles. 

By  the  rights,  especially  of  jurisdiction,  granted  to  the  no- 
bles, the  king's  power  was  restricted  in  its  direct  exercise  to 
his  own  lands,  where  he  exerted  rights  like  his  nobles.  If 
they  held  great  lordships,  they,  too,  being  vassals  of  the  king 
or  suzerain,  had  vassals  under  them;  and  in  each  grade  of 
descent  the  inferior  did  homage  for  his  lands  to  his  immediate 
superior,  down  to  the  milites  or  knights  who  served  in  war  as 
cavalry.  Below  these  were  the  serfs,  the  few  free  men  with 
small  holdings,  and  the  free  people  in  the  towns. 

As  the  theory  of  the  feudal  relations  became  fixed,  it  was 
held  that  the  king  was  originally  the  proprietor  of  all  lands 
that  were  not  allodial.  Not  the  state,  but  the  king ;  for  all 
political  duties  became  personal.  Every  proprietor  who  held 
his  lands  of  the  king  did  homage  to  him  when  he  took  pos- 
session, and  the  fine  on  this  occasion  was  a  token  that  strictly 
the  land  was  only  held  in  usufruct.  The  condition  was  fidel- 
ity (fealty),  in  failure  of  which  the  lands  reverted  to  the  supe- 
rior. In  general,  on  the  same  principle,  there  could  be  no 
alienation  of  land  without  his  consent,  and  in  the  minorities 

*  I  have  followed  Waitz,  Deutsch.  Verfassungsgesch.,  vol.  iv.,  no.  7, 
and  have  been  able  to  give  but  a  brief  account  of  what  is  most 
essential.  The  proofs  are  given  by  Waitz.  The  points  in  which  he 
differs  from  the  excellent  books  of  P.  Roth,  das  Beneficialwesen, 
1850,  and  Feudalitat  u.  Unterthanenband,  1863,  do  not  affect  this 
exposition  materially. 


534  POLITICAL   SCIENCE. 

of  his  vassals  he  was  their  guardian  ;  so  also  his  consent  to  the 
marriage  of  an  heiress  of  a  fief  was  necessary  where  women 
could  inherit.  In  the  same  way  the  vassals  received  homage 
from  their  vassals  (arriere  vassals),  and  so  on.  Allegiance  was 
subdivided  like  jurisdiction. 

It  was  the  interest  of  the  feudal  nobility  to  have  the  king's 
rights  over  them  fixed  and  restricted,  while  they  were  quite 
willing  to  act  with  more  arbitrariness  towards  their  vassals. 
The  rights  of  the  two  classes  did  not  go  along  together.  In 
Germany,  where  the  hereditary  descent  of  beneficia  or  fetuia 
was  long  unsettled,  Conrad  II.,  who  had  made  a  law  for  his 
Italian  dominions  to  this  effect,  established  the  usage  for 
vassals  without  positive  legislation.  Probably  for  the  great 
princes  it  had  been  a  fixed  custom  before,  but  he  insisted  that 
what  he  was  willing  to  concede  to  them  they  should  concede 
to  the  arriere  vassals.  This  won  the  hearts  of  the  smaller  no- 
blemen. "  However  much  the  crown,  by  conceding  the 
hereditary  descent  of  benefices,  may  have  lost,  the  loss  was 
richly  compensated  by  the  very  numerous  adherents  who 
were  gained  in  the  class  of  the  small  vassals  whose  fidelity 
could  be  trusted."  * 

The  king,  by  usage  or  agreement  (as  by  Magna  Carta) 
was  limited  in  regard  to  the  occasions  when  he  could  demand 
money  of  his  vassals,  in  regard  to  the  amount  and  kind  of 
military  service,  the  offences  against  the  suzerain  for  which 
they  could  be  tried,  and  the  manner  of  trial.  The  rule  run- 
ning through  feudalism  was  that  the  vassal  could  not  be  taxed 
without  his  own  consent,  nor  tried  but  by  his  peers.  He 
was  bound  to  attend  the  courts  of  his  superior,  he  was  bound 
to  protect  his  person  and  generally  to  release  him  from  cap- 
tivity. 

A  system  of  this  kind  evidently  broke  up  general  society, 

*  Words  of  Giesebrecht,  Gesch.  d.  Deutsch.  Kaiserth.  ii.,  167,  who 
corrects  the  opinion  generally  received,  and  which  Sugenheim  adopts, 
that  Conrad's  German  policy  related  especially  to  the  lower  vassals. 
It  did  them  the  most  service,  as  the  higher  vassals,  being  a  strong 
class  over  against  the  king,  could  have  forced  him  into  concessions. 


MONARCHIES.  535 

the  sense  of  security,  and  the  general  rights  of  a  kingdom, 
introducing  into  their  place  particular  rights,  a  divided  king- 
dom, private  war,  the  right  of  feud  and  of  resistance.  The 
kings  were  cramped  and  fettered.  It  was  natural  that  they 
should  be  glad  of  any  opportunity  to  overthrow  this  disor- 
derly state  of  order.  The  changes  of  industry  and  law,  new 
inventions,  the  rise  of  a  moneyed  class;  afforded  such  an 
opportunity.  The  kings  having  always  a  right  to  hear  cases 
on  appeal,  were  enabled  by  their  better  Roman  law, — which 
spread  from  Northern  Italy  over  Europe  from  the  twelfth  cen- 
tury onward, — to  supplant  feudal  law  ;  by  the  help  of  the 
towns  and  their  money  to  oppose  the  nobility  ;  by  the  use  of 
gunpowder  and  guns  and  hired  men-at-arms  to  become  more 
than  a  match  for  them  and  dispense  with  their  help.  This, 
with  the  national  feeling  that  arose,  was  the  beginning  of  the 
overthrow  of  feudalism.  The  national  feeling  was  owing  to 
increased  intercourse,  especially  between  the  cities,  to  a  law 
which  was  becoming  common,  to  general  estates  where  the 
three  orders  met  together,  to  a  new  literature  in  the  modern 
languages,  to  the  rise  of  a  diffused  learned  class. 

Thus  the  sovereigns  were  beginning  to  change  the  balance 
between  themselves  and  the  nobility  in  their  own  favor.  As 
they  represented  nationalization,  general  society  and  order, 
they  carried  the  feeling  of  all  classes  with  them,  except  the 
nobility.  If  now  they  could  find  a  way  of  raising  taxes  for 
themselves,  and  could  get  the  cities  into  their  control,  they 
would  begin  to  lay  a  foundation  for  absolutism.  In  some 
countries  they  were  enabled  to  do  this  ;  in  others  happily  it 
was  out  of  their  power. 

Feudalism  exhibits  to  us  national  governments  at  their  low- 
est point  of  weakness,  and  a  change  so  vast  as  this  was  brought 
about  in  favorable  circumstances  by  a  class  that  at  first  had 
not  the  titles  even  of  nobility.  It  shows  us  that  an  aristocracy 
of  landholders  under  an  almost  nominal  king  is  a  form  of  pol- 
ity which  has  in  itself  no  elements  of  progress.  Progress,  for 
its  support,  demands  aid  from  new  social  forces. 


53^  POLITICAL  SCIENCE. 


In  the  forms  of  limited  monarchy  hitherto  considered  the 
limitation  comes  from  a  part  of  the  community, 

Mixed  monarchy.  111  -r 

the  only  part  that  had  any  strength.  In  the 
mixed  monarchy,  the  limitation  comes  from  both  the  aristo- 
cratic and  the  popular  elements  of  the  state.  The  elective 
monarchy  became  such  by  influences  proceeding  from  an 
aristocracy.  The  feudal  monarchy  owed  its  disintegration  and 
its  weakness  to  usurpations  of  the  feudal  aristocracy.  What 
is  called  mixed  monarchy  contains  three  forces  which  may 
be  developed  into  great  activity  and  political  life,  but  will 
naturally  strive  to  repress  each  other's  efforts  at  supremacy, 
by  combinations  of  two  against  one,  when  that  one  is  en- 
deavoring to  grasp  more  than  its  share  ;  while,  if  the  three 
(or  four)  are  tolerably  well  agreed,  the  development  of  a 
nation  may  flow  along  under  the  control  of  great  historical 
and  social  causes.  It  is,  indeed,  possible  that  such  causes 
may  dwarf  one  of  the  three,  and  favor  the  growth  of  the 
rest ;  but  the  nations  that  may  be  classed  here  give  some  of 
the  most  signal  examples  of  order,  and  one  of  them,  of  prog- 
ress, that  history  affords. 

We  will  consider  the  constitutions  of  two  that  seem  very 
unlike,  the  Sparta  kingdom  in  Greece,  and  the  British  mon- 
archy. 

There  was,  in  Doric  Sparta,  no  nobility  ;  all  the  Spartans 
proper  were  equals  ;  and  yet,  over  against  the 

Sparta. 

perioeci,  who  were  free  landholders  without  a 
share  in  the  political  rights,  they  were  the  aristocracy,  while 
the  helots  were  serfs  owned  like  the  land  by  the  community, 
and  did  not  become  the  property  of  individuals.  Where 
then,  were  the  three  forces  in  this  constitution  ?  They  were 
the  kings,  the  gemsia  representing  tradition  and  order,  and 
the  poorer  class  of  the  Doric  Spartans  ;  who,  long  after  the 
foundation  of  the  polity,  and  notwithstanding  the  original 
plan  of  equality  of  shares  in  the  common  land,  became  reduced 


MONARCHIES.  537 

below  the  level  of  the  rest.*  These  had  their  representatives 
in  the  epJiori,  who  also,  in  an  important  sense,  acted  for  the 
community  as  a  check  on  the  kings. 

The  kings  present  to  us  an  image  of  the  old  Homeric 
/3ao-iXet<?  somewhat  shorn  of  their  power,  but  with  similar 
functions,  and  with  this  remarkable  peculiarity  that  there  were, 
through  all  Spartan  history  until  near  the  close,  two  contem- 
poraneous lines,  which  did  not  intermarry,  had  burial-places 
in  different  parts  of  the  town,  and  were  often  at  variance 
with  one  another.  The  tradition,  beyond  which  it  is  not 
easy  to  ascend,  makes  them  to  have  descended  from  a  com- 
mon Heraclid  ancestor,  but  the  reason  given  for  the  two  lines 
is  quite  insufficient.  We  can  hardly  conceive  it  possible  that 
at  the  early  epoch  to  which  a  division  of  royal  power  reaches 
back,  a  dread  of  one  man's  power  could  have  caused  this 
departure  from  old  usage.  In  Crete,  if  kings  had  been  at  the 
head  of  the  states  in  the  first  Doric  settlements,  they  ceased 
at  an  early  date,  giving  place  to  cosmi  or  regulators,  ten  in 
number  in  each  state,  but  chosen  annually  from  privileged 
families  (Aristot.  Pol.,  ii,  4,  §  6),  a  responsible  board,  punish- 
able for  misdemeanors,  and  invested  with  the  charge  of 
foreign  relations  and  the  interior  administration,  and  with 
the  preparation  of  business  for  courts.  (Hoeck,  Kreta.,  iii. 
83-92.)  At  Sparta,  the  son  first  born  after  a  king's  acces- 
sion, and  of  a  Spartan  mother,  followed  him,  or  if  there  were 
no  son,  the  next  relative  on  the  father's  side.  The  offices 
of  the  kings  were,  unlike  those  of  the  Homeric  and  early  city 
kingdoms,  subjected  to  constitutional  limitations.  They  had 
a  part  in  the  gerusia,  but  no  exclusive  power  of  initiating 
business  nor  right  of  negative.  In  war  they  commanded 
together,  in    the    early   times  ;    afterwards,    one    alone    was 

*  The  skepticism  of  Grote  in  regard  to  the  equality  of  lots  of  land 
under  the  old  Spartan  constitution,  is  justly  rejected  by  E.  Curlius 
and  Schumann.  Besides  the  difficulty  of  accounting  for  the  tradi- 
tion, its  credibility  is  shown  by  the  communistic  leanings  in  other 
respects,  by  the  equality  of  the  Doric  settlers,  by  the  analogous 
practices  in  other  lands. 


538  POLITICAL   SCIENCE. 

entrusted  with  the  command  of  the  army  ;  and  in  later  times 
so  greatly  had  distrust  of  them  grown,  that  an  epliorits  was 
given  to  them  as  a  counsellor.  They  had  among  their  judi- 
cial functions  the  decision  in  respect  to  the  marriage  of  heir- 
ess-daughters, and  probably  of  all  jural  questions  growing 
out  of  the  family  relations.  The  oversight  of  the  public 
roads  belonged  to  them,  and  they  had  some  especial  connec- 
tion, as  protectors,  with  the  perioeci,  or  non-Doric  freemen. 

The  senate  or  gerusia  was  composed  of  twenty-eight  mem- 
bers, besides  the  two  kings.  They  must  have  attained  the 
age  of  sixty,  were  elected  for  life  by  a  kind  of  acclamation, 
the  strength  of  voice  in  favor  of  any  one  being  determined 
by  persons  in  a  place  adjoining  the  assembly  who  were  igno- 
rant of  the  candidates.  They  were  at  first  irresponsible,  and 
continued  to  be  so  in  the  time  of  Aristotle.  (Pol. ,  ii.  6,  §  18.) 
Their  functions  were,  as  counsellors,  to  prepare  business  for 
the  assembly,  which  in  early  times  accepted  or  rejected  their 
resolutions  without  alteration  ;  as  judges,  to  decide  in  capi- 
tal cases ;  that  is,  in  those  where  life  or  civil  honor  and  citi- 
zenship were  at  stake,  and  in  cases  where  the  kings  were 
tried  ;  in  which  cases  the  eplwri  acted  with  them.  The  kings 
had  a  vote  in  trials,  and  if  absent  could  appoint  a  proxy.* 

The  assembly,  consisting  of  all  Spartans  or  "persons  of 
equal  rights,"  6/j.oioi,  being  summoned  by  the  kings,  and  also 
in  later  times  by  the  epJiori,  voted,  as  has  been  said,  on  pro- 
positions submitted  by  the  senate,  and  perhaps  expressed 
their  minds  on  other  points  without  having  any  formal  reso- 
lution before  them.  The  kings,  senate  or  ephori  might 
introduce  the  business.  Legislation  in  the  strict  sense  was 
a  very  rare  thing.  No  laws  can  be  found  to  have  been  made 
until  the  end  of  the  polity,  with  the  exception  of  two  which 
materially  altered  it — one  allowing  the  state  treasury  to 
receive  gold  and  silver  ;  another,  the  law  of  Epitadeus,  allow- 
ing alienations  of  estates. 


*  Schomann,  Gr.  Alt.,  i.,  134,  whom  I  have  followed  to  a  consider- 
able extent  in  this  account  of  the  Spartan  constitution. 


MONARCHIES.  539 

A  very  remarkable  institution  of  Sparta,  one  which  we 
may  take  occasion  to  refer  to  again,  as  a  fine  example  of  an 
institution  in  the  strict  sense,  was  the  cpliorate.  When  this 
began  is  not  certain,  but  in  its  first  form  it  was  an  office 
subordinate  to  that  of  the  king,  for  the  purpose  of  aiding 
him  in  administering  justice  and  performing  some  of  his 
duties  in  his  absence.  Police  and  censorial  power  over  magis- 
trates and  the  public  discipline,  which  the  king  had  at  first, 
fell  into  their  hands.  Next  they  acquired  a  certain  control 
over  other  magistrates  and  the  kings  themselves,  a  power  rep- 
resenting the  people  even  more  than  the  kings  represented 
them.  With  the  prevalence  of  inequality  in  the  size  of  estates, 
they  took  a  democratic  cast,  as  protectors  of  a  poor  majority 
against  a  rich  minority.  As  Sparta  mingled  more  in  the 
politics  of  Greece,  especially  after  the  thirty  years'  war, 
they  had  great  influence  in  external  relations.  Every  month 
these  representatives  of  the  community,  who  never  rose  from 
their  seats,  as  other  men  did,  in  honor  of  a  king,  gave  to  the 
kings,  and  took  from  them  for  the  public  an  oath  ;  the  kings 
on  their  side  promising  to  reign  according  to  the  laws,  these 
for  the  state  promising  that  if  they  kept  their  word,  they 
should  enjoy  undisturbed  authority.  (Xen.,  Rep.  Lac,  end.) 
Their  right  it  was  to  bring  charges  against  a  king,  with  the 
proposal  to  punish  or  depose  him  ;  or  if  another  were  the 
accuser,  he  must  bring  his  complaint  before  these  magistrates. 
The  senate  presided  over  by  the  other  king  decided  the  case. 
The  accused  king  was  obliged,  when  cited  before  the  ephori, 
to  appear  at  least  on  the  third  summons.  All  other  magis- 
trates were  subjected  to  them  in  a  still  greater  degree,  could 
be  suspended  from  their  functions,  could  be  arrested  and 
even  capitally  tried.  At  first  the  king's  assistants,  then  a 
checking  board,  they  at  length  became  a  most  positively  act- 
ive magistracy,  especially  in  foreign  affairs.  Two  of  them 
accompanied  the  king  in  his  campaigns  to  watch  him.  (Arist. 
Pol.,  ii.,  6,  <§,  20.)  Add  to  this  their  power  to  take  measures 
in  regard  to  the  Helots  like  the  infamous  cryptcia,  to  keep 
up  ancient  discipline   in   ways  of  their  own,  to  collect  taxes 


540  POLITICAL   SCIENCE. 

from  the  perioeci,  to  receive  for  the  state  the  spoil  taken  in 
war,  to  adopt  summary  police  regulations  ;  and  there  will 
seem  to  be  justice  in  Aristotle's  words  when  he  says  (Pol.  ii., 
6,  §  14)  that  the  kings  themselves  were  forced  to  play  the 
demagogue  because  this  magistracy  was  so  very  great  and 
tyrannical. 

We  thus  see  a  great  change  in  the  Spartan  constitution, 
caused  by  the  increase  of  the  democratic  power  of  the  ephori, 
and  that  the  power  became  democratic  on  account  of  the 
great  inequality  of  landed  estates  and  the  number  of  poor 
citizens.  The  inequality  itself  was  due,  at  least  in  part,  to 
the  decay  of  families  in  the  male  line  and  to  the  marriages  of 
heiress-daughters.  But  if  the  general  opinion  is  true  that 
equal  shares  of  land  was  a  primeval  provision  of  the  Spartan, 
as  it  was  of  the  Jewish  constitution,  it  must  have  given  way 
before  a  new  sentiment  inconsistent  with  the  moderation  and 
old-fashioned  ways  of  Sparta.  Connected  with  this  is  the 
looseness  of  life  which  Aristotle  imputes  to  the  women,  of 
whom  he  says  that  "  they  lived  in  an  unrestrained  way  in 
regard  to  all  manner  of  licentiousness,  as  well  as  luxuriously." 
(Pol.  ii.,  6,  §  5.)  If  then  the  constitution  at  first  exhibits  the 
kingly  element  in  prominence,  at  the  last,  although  the  state 
was  more  than  almost  any  other  kept  from  the  influences  of 
foreign  opinions  and  of  commerce,  it  did  not  preserve  its 
old  upright  position,  but  careened  over  toward  the  demo- 
cratic side.  The  chief  cause  of  change  outside  of  institu- 
tions seems  to  have  lain  in  the  part  Sparta  had  in  the  politics 
of  Greece,  and  in   the   result  upon  the  national  character. 

Aristotle,  in  his  Politics,  criticises  the  polity  of  Sparta  with 
a  degree  of  severity  one  would  not  have  expected  (ii.,6). 
One  of  his  remarks  has  been  already  cited — that  the  Spartan 
discipline  had  failed  in  regard  to  the  women  ;  that  wealth  by 
consequence  was  honored  ;  that  the  women  had  influence  in 
public  affairs  and  even  did  more  evil  if  possible,  during  the 
Theban  invasion,  than  the  enemies  themselves.  A  second 
defect  is  the  disproportion  of  estates,  which  is  such  that  the 
land  had  come  into  a  few  hands.     The  law  rightfully  made  it 


MONARCHIES.  54 1 

dishonorable  to  buy  or  sell  a  patrimony,  but  allowed  the 
giving  of  lands  away  in  life  or  by  testament  at  pleasure. 
And  yet  the  consequences  are  the  same  in  both  cases.  Two- 
fifths  of  the  estates  are  in  the  hands  of  women,  owing  to  their 
coming  into  the  hands  of  heiresses  and  to  large  dowers.  It 
would  have  been  better  to  allow  no  dower,  or  at  most  a  very 
moderate  one.  As  it  is,  an  heiress  can  be  given  away  by  the 
father  in  marriage  as  he  sees  fit,  and  if  he  leaves  no  will  the 
heir  can  bestow  her  in  marriage  at  his  pleasure.  Hence  al- 
though the  territory  can  sustain  fifteen  hundred  horsemen 
and  thirty  thousand  hoplites,  there  are  not  a  thousand  of 
them  in  all.  The  state  could  not  hold  up  under  one  blow, 
but  perished  on  account  of  the  scantiness  of  its  population  in 
the  war  with  Thebes.  The  law  relating  to  the  number  of 
children  acts  against  repairing  this  evil ;  to  promote  a  large 
number  of  male  children,  it  gives  to  the  father  of  three  sons 
the  privilege  of  being  exempt  from  guard-duty,  and  to  the 
father  of  four,  exemptions  from  all  state  burdens.  Yet  it  is 
plain  that,  as  long  as  the  division  of  landed  estates  continues 
as  unequal  as  it  is,  the  more  poor  there  will  be,  the  more 
children  there  are  born.  Another  defect  the  philosopher 
sees  in  the  eplwrate.  Although  this  magistracy  has  the 
greatest  power  in  its  hands,  those  who  fill  it  are  all  taken  out 
of  the  lower  class  of  the  people,  so  that  often  very  poor  men 
are  put  into  it  who  are  venal  on  account  of  their  poverty. 
And  yet  this  magistracy  holds  the  constitution  together  ;  for 
the  populace  is  quiet,  because  it  has  a  share  in  the  principal 
office.  For  a  form  of  polity  that  will  last  ought  to  strive  that 
all  its  parts  should  be  and  continue  as  they  are.  The  kings 
continue  as  they  are  on  account  of  their  honor  ;  the  higher 
class  on  account  of  the  senate,  which  is  a  reward  of  virtue  ;  the 
common  people  on  account  of  the  ephoratc,  which  is  open  to 
all.  Rut  it  would  have  been  better  to  adopt  some  kind  of 
election  not  so  childish  as  the  present  mode.*     And  as  the 


*  Com  p.  what  is  said  above  of  the  election  of  the  gerusia.  Plato, 
Laws,  ill. ,  p.  692,  A,  speaks  of  the  choice  as  equal  to  election.     His 


542  POLITICAL   SCIENCE. 

epJiori  decide  in  the  most  important  trials,  it  would  have  been 
well  to  lay  down  laws  for  them  to  go  by,  and  that  they  should 
not  have  so  much  discretionary  power.  Their  morals  also 
Aristotle  finds  fault  with,  as  contrary  to  the  spirit  of  the  state 
and  opposite  to  the  habits  in  which  the  other  citizens  are 
brought  up.  The  gerusia  in  its  composition  ought  to  have  been 
of  advantage  to  the  state,  yet  Aristotle  thinks  it  of  ques- 
tionable expediency  to  leave  to  men  through  their  lives  the 
power  of  judging  in  important  cases,  for  there  is  an  old  age 
of  the  mind  as  of  the  body,  and  some  of  the  senators  have 
been  accessible  to  corruption.  The  manner  of  choosing  the 
senators  is  more  childish  than  that  of  choosing  the  ephori 
(see  above),  and  that  the  person  who  is  to  be  thought  compe- 
tent to  fill  an  office  should  ask  for  it  himself  is  not  well  ;  he 
who  is  fit  ought  to  have  it,  whether  he  wishes  or  not.*  In 
this  provision  the  legislator  follows  a  principle  which  pervades 
the  polity;  he  makes  the  citizens  ambitious  by  the  manner 
of  electing  the  senators,  since  no  one  unless  he  were  ambi- 
tious would  ask  for  an  office  ;  and  yet  the  greater  part  of 
crimes  are  committed  by  men  under  the  influence  of  ambition 
and  love  of  money.  As  for  the  kings,  Aristotle  finds  fault 
with  the  distrust  which  the  legislator  entertained  toward 
them,  in  that  their  enemies  {ephori)  were  sent  out  with  them 
on  expeditions,  and  the  discord  of  the  two  was  considered 
the  safety  of  the  state.  The  common  meals  also  he  thinks 
not  to  be  on  as  good  a  plan  as  the  similar  institutions  among 
the  Cretans,  where  the  expenses  were  defrayed  by  the  state. 
At  Sparta  every  one  had  to  contribute  his  part,  whence  it 
came  to  pass  that  the  very  poor  were  shut  out,  and  lost  their 
share  in  the  polity  in  consequence,  as  to  the  system  in  gene- 
ral Aristotle  agrees  with  what  Plato  says  in  the  Laws  (i. , 
beginning,  as  in  p.  628,  D),  that  the  whole  system  of  Lacedae- 

opinion  is  that  the  ephorate,  by  being  a  check  on  the  kings,  saved 
them  and  the  state. 

*  Aristotle  here  condemns  the  life-tenure  of  senators  and  self- 
nomination  to  office.  He  never  heard  of  caucuses,  and  probably 
would  have  accepted  a  long  senatorial  term  with  superannuation. 


MONARCHIES.  543 

monian  polity  is  calculated  too  exclusively  for  war.  Tri- 
umph over  enemies  destroyed  it,  for  they  had  no  capacity  of 
enjoying  peace.  The  system  of  finance  also  was  badly  con- 
trived ;  the  state  has  no  treasure,  and  the  contributions 
amount  to  little.  The  state  was  poor  and  the  private  persons 
greedy. 

In  another  place,  where  Aristotle  is  treating  of  the  form  of 
government  which  he  calls  politeia,  he  comes  again  to  con- 
sider the  Lacedaemonian  system  (vi.,  or  iv.,  7,  ^  5).  Some 
call  it  a  democracy,  others  an  oligarchy  ;  the  former,  because 
of  the  social  equality  in  many  respects,  and  the  people's  share 
in  the  elections  ;  the  others,  because  certain  magistrates  have 
great  power,  and  the  offices  are  given  by  election,  none  by 
lot.  The  demus  elect  the  senate,  and  are  eligible  to  the 
ephorate.  What  does  he  intend  here  and  in  the  other  pas- 
sage by  the  demus?  I  am  unable  to  say  except  that  in  the 
course  of  time  a  lower  class  of  citizens  arose,  whose  riehts 
were  not  as  good  as  those  of  persons  who  were  eligible  into 
the  senate.  In  connection  with  this  passage  we  may  put 
those  in  Xenophon's  Hellenica,  where  a  class  more  numerous 
than  the  '  homceoi,'  namely  the  '  hypomeiones  '  or  the  '  some- 
what inferior,'  are  spoken  of.  They  may  have  been  the 
poorer  class  who  had  lost  their  full  rights  by  being  unable 
to  defray  the  expenses  of  their  common  meal,  as  well  as  the 
descendants  of  such  persons.  The  story  of  Cinaedon  (Xen., 
Hellen.  Hi.,  3,  §§4-11)  shows  the  Spartan  polity  in  the  utmost 
danger,  from  a  person  of  aspiring  spirit  who  wanted  to  be 
inferior  to  nobody  in  Lacedaemon  (u.  s. ,  §11.  Comp.  Aristot. , 
Pol.,  viii.  or  v.,  6,  §  2). 

%  172. 
As  in  the  Spartan  state,  so  in  England  we  find  three  forces, 
which  may  be  called  the  kinglv,  the  aristocratic 

English  monarchy.  '  ' 

or  oligarchic,  and  the  democratic,  moving  to- 
gether or  against  one  another,  but  different  at  different  times 
in  their  relative  strength.  The  kingly  and  aristocratic  are  in 
opposition   at  first,  and   the    latter,  gaining  on  the  former, 


544  POLITICAL   SCIENCE. 

secures  the  liberties  of  England,  and  lays  the  foundation  for 
a  permanent  check  on  royalty,  and  for  liberties  in  which  the 
commons  share.  Next,  after  a  scene  of  war  and  conflict,  in 
which  the  nobility  perished  to  a  large  extent,  the  field  was 
more  clear  for  the  royal  element  to  aim  at  absolute  power. 
The  attempt  was  resisted  mainly  by  the  burgesses,  who, 
however,  received  aid  from  a  part  of  the  gentry  and  nobles  ; 
and  the  result  was,  in  the  end,  the  weakening  of  the  princi- 
ple of  monarchy,  the  stop  of  all  tendencies  to  absolutism,  the 
government  of  the  country  by  a  responsible  ministry  repre- 
senting the  prevailing  judgment  of  the  most  enlightened 
classes  in  regard  to  the  public  interests  and  honor.  But 
a  constitution  with  several  forces  producing  changes  in  opin- 
ion, which  opinion  is  affected  also  by  changes  in  wealth, 
industry,  political  theory,  education,  and  other  social  or 
moral  causes,  cannot  remain  fixed  in  its  details  for  a  long 
time,  however  much  a  nation  may  hold  to  the  great  outlines 
of  its  polity.  The  leanings  are,  and  have  been  for  the  greater 
part  of  the  time  since  the  revolution  in  1688,  except  during 
the  reaction  caused  by  the  French  revolution,  towards  a 
more  liberal  and  popular  government,  yet  with  a  predominant 
influence  of  the  aristocratical  element ;  and  in  recent  times 
towards  extension  of  suffrage,  removal  of  disabilities,  and  the 
transfer  of  the  centre  of  opinion  from  the  titled  to  the  untitled 
wealth  and  intelligence  of  the  country.  The  question  now  is 
whether  the  stream  of  change  will  not  run  in  such  a  direction 
that  the  precedents  of  the  past  will  be  set  aside,  and  forms 
of  polity  be  adopted  which  are  foreign  from  the  genius  of  the 
nation. 

A  constitution  which  is  so  important  in  the  science  of 
government,  which  has  had  such  a  benignant  influence  on 
the  states  of  continental  Europe,  and  is  to  so  great  a  degree 
the  storehouse  from  which  our  American  principles  of  civil 
liberty  are  drawn,  deserves  the  most  careful  study ;  and  its 
history  needs  acquaintance  with  long  details  for  its  thorough 
comprehension.  The  works  of  Hallam,  May  and  Gneist, 
together  with  the  learned  history  of  the  early  constitution, 


MONARCHIES.  545 

by  Prof.  Stubbs,  when  it  shall  have  been  completed,  will 
furnish  the  political  student  with  the  needed  information. 
Our  aim  in  this  place  will  be  to  consider  the  form  or  expres- 
sion of  itself  in  which  the  constitution  appears,  its  leading  ele- 
ments, and  the  tendencies  that  show  themselves  at  the  present 
time. 

I.  The  constitution  appears  in  no  separate  form,  distinct 
from  the  laws  and  usages  of  the  realm.  In  this  it  is  unlike 
the  written  constitutions — so-called — of  modern  times,  unlike 
the  charters  and  the  instruments  obtained  by  compact,  that 
belong  to  the  later  middle  ages  but  like  the  antique  consti- 
tutions such  as  those  of  Athens  and  Rome,  and  especially  like 
the  latter,  to  which  England  in  its  fondness  for  precedent, 
its  political  skill,  and  practical  good  sense,  bears  a  strong 
resemblance.  In  the  ancient  times,  especially  when  strife  of 
classes  ran  high,  a  legislator  was  called  in  to  reform  the  laws 
and  the  polity.  Thus  Solon,  and  before  him  Lycurgus,  gave 
a  new  form  to  the  polity  of  their  respective  states  ;  but  the 
laws  relating  to  the  polity,  and  those  relating  to  rights  and 
order  of  society,  are  mingled  together.  The  constitutions 
of  Lycurgus  are  called  prjrpai,  and  whether  the  word  denotes 
covenants,  or  sayings,  or  maxims,  they  were  unwritten.  One 
of  them,  according  to  Plutarch,  was  to  use  no  written  laws. 
(Vit.  Lycurg.,  §  13.)  But  it  is  doubtful  whether  writing  was 
then  in  use  in  Greece.  The  English  constitution  has  some- 
thing of  the  character  of  the  common  law  ;  such  a  form  or 
want  of  form  could  only  suit  a  nation  attached  to  precedent  ; 
and  such  attachment  to  precedent  could  belong  only  to  a 
law-abiding  people.  A  written  constitution,  full-grown  all 
at  once,  has  been  compared  to  a  machine  made  by  rare  hands, 
on  a  theory  of  powers  and  balances,  which  is  expected  by 
its  framers  to  move  of  itself,  through  an  inward  mechanism. 
Certainly  a  constitution  slowly  rising  and  completing  itself  is 
likely  to  express  most  perfectly  old  political  habits  and  to 
secure  rights  that  have  been  attacked  ;  it  is  like  the  common 
law  and  the  customs  of  nations,  a  fruit  of  experience.  But 
certainly,  on  the  other  hand,  in  an  age  when  statutes  over- 
35 


546  POLITICAL  SCIENCE. 

burden  the  books,  and  law  takes  a  written  form,  there  can 
be  no  objection  to  a  constitution  standing  by  itself  in  a  written 
shape,  separate  from  statute  law,  and,  like  some  inner  cham- 
ber, a  sort  of  national  adytum. 

But  it  may  fairly  be  replied  to  this  that  there  is  no  broad 
line  separating  law  and  constitution.  Laws  may  be  trivial 
and  may  relate  to  minute  matters  ;  but  they  may,  on  the  other 
hand,  be  of  immense  importance,  and  yet  not  within  the  po- 
litical sphere.  Thus,  the  right  of  trial  by  jury  is  secured  in 
the  Constitution  of  the  United  States  ;  general  warrants  are 
prohibited,  as  well  as  quartering  of  troops.  (Amendments, 
vii. ,  iii. ,  iv. )  These  are  limitations  of  the  power  of  the  exec- 
utive and  courts  ;  but  other  rights  are  not  noticed  in  the  same 
instrument,  either  by  reason  of  their  not  having  been  invaded 
or  of  their  smaller  importance.  The  provision  concerning  gen- 
eral warrants  was,  without  question,  made  prominent,  because 
they  were  decided  a  little  before,  in  the  Wilkes  case,  to  have 
been  illegal  and  void.  Was  the  illegality  of  general  warrants 
a  part  of  the  constitution,  properly  speaking,  or  did  this  de- 
cision declare  the  state  of  the  law?  The  decision  was  based 
on  the  uncertainty  of  such  a  warrant,  which  leaves  to  the 
subordinate  officer  what  is  the  magistrate's  duty,  and  is  there- 
fore no  warrant  at  all  (Blackst. ,  iv. ,  p.  291) ;  and  yet,  without 
doubt,  the  great  argument  against  such  warrants  was  a  polit- 
ical one,  drawn  from  the  vast  power  they  would  throw,  if 
allowed,  into  the  hands  of  an  executive.  In  England,  then, 
they  are  illegal,  in  the  United  States,  unconstitutional.  This 
shows  that  there  is  no  exact  limit  between  the  two  provinces, 
but  that  good  sense  must  determine  where  to  place  a  particu- 
lar provision  at  a  particular  time. 

The  question,  what  is  the  constitution,  is  often  a  very  im- 
portant one.  How  does  English  law  or  usage  supply  an  an- 
swer to  this  ?  An  illustration  from  the  chapter  of  history  to 
which  we  have  referred  will  show.  John  Wilkes,  a  member 
of  Parliament,  having  been  imprisoned  on  a  general  warrant, 
for  writing  and  publishing  seditious  libels,  had  been  released 
by  the  court  of  common  pleas  on  the  score  of  privilege.     Af- 


MONARCHIES.  547 

ter  this,  parliament  resolved  that,  privilege  of  parliament,  of 
a  political  power,  "  did  not  extend  to  the  case  of  writing  and 
publishing  seditious  libels."  Parliament  had,  by  long  use 
under  the  constitution,  the  power  to  expel  its  members  for 
any  crime  or  ofifence.  But  besides  the  oppressive  nature  of 
the  resolution  on  other  accounts,  "  to  condemn  the  libel  as  sedi- 
tious was  to  anticipate  the  decision  of  the  proper  tribunal."  * 
Now,  who  is  to  determine  the  privileges  of  parliament  ?  Its 
treatment  of  its  own  members  is  perhaps  within  its  own 
power  entirely ;  but  the  case,  in  which  Stockdale  sued  the 
printers  of  the  house  of  commons  (1836)  for  publishing  by 
order  a  report  declaring  a  book  of  his  obscene  and  indecent, 
shows  that  their  privileges  will  not  justify  a  bookseller  in  pub- 
lishing a  parliamentary  report  containing  a  libel  against  a 
private  person. f  The  commons  endeavored  to  defend  their 
privileges.  They  decided  that  the  power  of  publishing  re- 
ports "  is  an  essential  incident  to  the  constitutional  functions 
of  parliament,"  and  especially  of  the  commons,  and  that  "  to 
institute  a  suit  calling  this  privilege  in  question,  or  for  any 
court  to  decide  upon  matters  of  privilege,  inconsistent  with 
the  determination  of  either  house,  was  a  breach  of  privilege." 
Stockdale,  however,  went  on  with  his  suits,  and  finally,  dam- 
ages of  six  hundred  pounds  were  assessed  for  him  in  the  sher- 
iff's court,  judgment  having  gone  by  default.  The  sheriffs, 
who  had  the  money  in  their  hands  and  refused  to  obey  an 
order  of  parliament  to  pay  it  back  to  the  printers,  together 
with  Stockdale,  were  committed  to  the  custody  of  the  ser- 
geant. The  sheriffs  were  compelled,  by  an  attachment  from 
the  court  of  queen's  bench,  to  pay  the  money  to  Stockdale. 
At  length  an  act  provided  that  such  actions  should  be  stayed, 
on  production  of  evidence  that  the  paper,  which  was  the  sub- 
ject of  action,  was  printed  by  order  of  either  house  of  parlia- 
ment. 

The  question,  then,  what  is  or  is  not  constitutional,  may 
in  many  cases  come  before  the  courts,  but  it  must  not  inter- 

*  May,  Const.  Hist.,  i.,  367.  f  Ibid.,  i.,  425. 


548  POLITICAL   SCIENCE. 

fere  with  the  privileges  of  parliament  ;  and  in  a  conflict  be- 
tween the  commons  and  a  court,  either  the  court's  opinion 
must  give  way,  or  a  new  law  must  prevent  all  doubt  for  the 
future.  The  courts  are  thus  not  in  the  position  of  the  supreme 
court  of  the  United  States,  which  in  all  cases  can  declare  a 
law  of  congress  to  be  inconsistent  with  the  constitution.  This 
is  owing  to  the  form  in  which  the  British  constitution  appears, 
and  to  the  supreme  power  over  all  laws  exercised  by  the 
houses  of  parliament  and  the  sovereign. 

Thus  the  "omnipotence  of  parliament"  appears  in  this, 
that  all  laws,  of  whatever  nature,  are  valid,  if  passed  in  the 
proper  way  through  the  houses,  and  have  received  the  royal 
sanction.  And  in  fact,  the  constitution  has  been  changed 
most  materially  without  receiving  any  formal  sanction  from 
the  constituents.  Thus  the  convention  parliament  declared 
James  II.  to  have  abdicated  ;  the  succession  was  altered  a 
little  while  afterwards  ;  the  long  parliament  made  war  on  the 
king ;  a  parliament  of  Henry  VIII.  put  the  right  of  naming 
his  successor  into  his  own  hands.  All  this,  however,  has 
been  consistent  with  a  strong  conservatism,  a  deep  reverence 
for  the  constitution  as  it  actually  was  or  was  understood  to  be. 
There  has  been  no  danger,  owing  to  the  happy  stability  of 
civil  freedom  and  the  general  peacefulness  of  political  parties, 
that  such  a  thing  as  a  radical  constitutional  change  could  ever 
be  attempted  or  even  apprehended.  So  great  and  just  a 
change  as  the  first  reform  bill  was  not  passed  without  delay, 
long  discussion  and  vehement  opposition.  But  as  the  con- 
stitution verges  toward  the  preponderance  of  the  popular 
element,  a  time  may  come  when  it  may  be  regretted  that  par- 
liament itself  had  not  been  limited  by  a  constitution  which 
it  could  not  alter  or  authoritatively  interpret. 

173- 
2.  The  powers  of  the  state.     The  royal  power  first  calls  for 
our  consideration,  as  being  of  earlier  origin  than 

Royal  power.  .  . 

the  others.     As  we  have  already  seen,  it  was  in 
the  Anglo-Saxon  times  in  theory  elective;  but  the  kings  were 


MONARCHIES.  549 

taken  from  one  family  without  regard  to  strict  hereditary- 
succession,  the  next  of  kin  being  sometimes  passed  by  in 
favor  of  another  nearer  relative  better  suited  to  fill  the  throne. 
This  election  was  made  by  the  wit  an,  who  consisted  of  the 
principal  ecclesiastical  dignitaries  (archbishops,  bishops,  and 
abbots),  ealdormen  and  ministri,  or  king's  thegns,  who  were 
the  chief  officers  of  the  household  and  the  leading  holders  of 
folkland,  answering  to  the  antrustions  of  the  early  Frank 
kings.  The  same  body  had  the  power  of  deposing  the  king  ; 
but  in  Wessex,  there  is  no  instance,  says  Prof.  Stubbs,  in 
which,  without  the  presence  of  a  competitor,  who  had  perhaps 
an  equal  title  to  the  throne  by  hereditary  or  personal  qualifi- 
cations, a  king  was  simply  set  aside  for  misgovernment. 

The  Anglo-Saxon  kingdom  changed  in  the  latter  centuries 
of  its  existence  in  several  important  respects.  The  folkland 
by  degrees  became  royal  demesne  or  bookland  ;  a  number  of 
persons  commended  themselves  to  the  king  ;  the  military  ser- 
vice became  connected  with  the  possession  of  land  ;  private 
jurisdictions  removed  land  from  the  jurisdiction  of  the  court 
of  the  hundred.  Thus  influences  from  some  source  were  be- 
ginning to  put  local  relations,  derived  from  proprietorship,  in 
the  place  of  state  relations,  and  yet  there  was  no  complete 
feudalization  of  England.  "  The  time  however  came,"  says 
Prof.  Stubbs,  "  when  the  great  local  landowner  was  vested 
with  the  right  of  representing  the  king,  as  judge  and  landrica 
in  his  whole  district,  and  so  exercised  jurisdiction  over  minor 
landowners."  "  This  change,"  he  thinks,  "  may  have  been 
a  local  enactment  only."  But  "wherever  it  prevailed,  it 
must  have  brought  the  local  jurisdictions  into  close  conformity 
with  the  feudalism  of  the  continent."     (u.  s.,  i.,  186.) 

The  king  increased  in  power  after  the  country  was  united 
under  one  sovereign,  but  the  witenagemote  was  still  neces- 
sary for  legislation.  He  increased,  also,  in  his  sense  of  im- 
portance, in  personal  dignity,  and  is  held  to  be  Christ's  vice- 
gerent on  earth.  He  came  also  increasingly  to  be  regarded 
as  the  fountain  of  justice,  he  was  the  guardian  of  the  peace, 
and  thus  the  head  of  civil  order  against  those  who  broke  the 


550  POLITICAL   SCIENCE. 

peace  and  those  who  harbored  them.  And  as  jurisdiction  is 
inseparable  from  the  office  of  protecting  public  peace  and  or- 
der, all  who  were  in  his  peace  were  under  his  jurisdiction  ; 
"  he  was  supreme  judge,  limited,  however,  by  the  counsel  and 
consent  of  the  witan."     (Stubbs,  p.  183.) 

When  William  of  Normandy  conquered  England,  he  laid 
claim  to  the  crown  as  the  heir  of  Edward  the  Confessor. 
The  same  policy  that  led  him  to  put  forward  this  claim  led 
him  also  to  seek  for  acceptance  from  the  witan  and  for  coro- 
nation. No  general  division  of  lands  followed  at  first,  but 
with  every  new  outbreak  new  confiscations  and  divisions  took 
place,  until  "  the  fifteen  hundred  tenants  in  chief  of  Domes- 
day take  the  place  of  the  countless  landowners  of  King  Ed- 
ward's time."  All  this  took  place  without  legislation.  Mili- 
tary tenure  came  in  by  degrees,  but  the  changes  in  the  tenure 
of  land  and  in  other  respects  did  not  fully  reach  the  strict 
feudalism  of  France.  The  oath  of  allegiance  was  taken  by 
every  freeman  and  freeholder,  and  at  the  council  of  Salisbury, 
"  all  the  king's  witan,  and  all  the  landholders  of  substance  in 
England,  whose  vassals  soever  they  were,  came  to  the  king 
and  became  his  men  and  swore  oath  of  allegiance  and  that 
they  would  be  faithful  to  him  against  all  others."  This 
shows,  as  Prof.  Stubbs  observes,  that  he  meant  to  modify 
feudalism,  to  prevent  its  disruptive  tendencies.  "  The  great 
feature  of  the  conqueror's  policy  is  the  defeat  of  that  ten- 
dency." Although  the  whole  kingdom  was  brought  under 
feudal  forms,  he  meant  to  keep  a  personal  hold  on  the  lower 
vassals. 

The  form  of  royalty  under  the  early  Norman  kings  ap- 
proached toward  absolutism.  The  king's  council,  at  which 
the  lay  and  ecclesiastical  magnates,  and  sometimes  the  smaller 
tenants  in  capite  assembled,  may  be  said  to  have  succeeded 
to  the  powers  of  the  witenagemote,  but  they  rather  gave 
consent  than  had  a  decisive  voice.  The  administration  was 
arbitrary,  and  the  higher  offices  were  in  the  hands  of  eccle- 
siastics to  a  considerable  extent  through  fear  of  the  feudal 
nobility.      Had  it  not  been  for  disputes  concerning  the  title 


MONARCHIES.  551 

to  the  crown,  as  in  the  cases  of  Henry  I.  and  Stephen,  the 
kings  would  have  possibly  been  able  to  attain  to  an  inde- 
pendence unknown  in  the  feudal  times.  As  it  was,  they 
were  obliged  to  make  concessions,  to  submit  to  an  election 
by  the  council,  and  to  take  the  old  oath  of  observing  the 
laws.  What  aided  them  was  the  want  of  union  between  the 
English  and  Norman  elements.  They  were  sure  of  sympathy 
from  the  old  inhabitants,  when  they  overcame  the  resistance 
of  a  refractory  Norman  nobleman.  They  retained  jurisdic- 
tion in  their  own  hands  to  a  great  extent  through  their  own 
court-offices  ;  although  a  few  counts  palatine  had  hereditary 
high  jurisdiction,  like  the  earls  of  Chester.  They  derived 
their  revenues  from  royal  estates  of  vast  amount,  from  feudal 
dues  of  the  usual  kinds,  and  from  old  taxes,  such  as  the 
Danegeld  or  assessment  on  cultivated  land. 

The  reigns  of  Henry  II.  and  his  two  sons,  are  important 
as  the  era  when  the  people  began  to  be  a  power  in  the  state, 
as  is  shown  in  the  great  rebellion  against  Henry  II.  (1174), 
when  the  clergy,  the  newer  nobility  with  the  freemen  of  the 
towns  and  the  country,  were  on  his  side.  Still  more  is  the 
reign  of  John  of  meaning  for  the  constitution  and  for  the 
English  nation.  Then  first  appear  the  beginnings  of  a  repre- 
sentative assembly  consisting  of  barons  and  representatives 
of  townships  ;  then,  also,  the  right  of  electing  the  king  is 
distinctly  announced,  when  John  is  chosen  instead  of  Ar- 
thur of  Brittany ;  *  then  finally,  the  leading  men  of  the 
kingdom,  with  Archbishop  Stephen  Langton  at  their  head, 
worn  out  and  disgusted  by  the  vileness,  falseness  and  op- 
pression of  the  king,  force  from  him  in  his  straits  the  Magna 
Carta  (June  19,  1215). 

This  great  charter,  although  a  confirmation  for  the  most 
part  of  rights  before  enjoyed  under  that  of  Henry  I. 
(A.D.  1 100),  may  be  called  more  than  any  other  single  instru- 
ment   a    constitution;    for    it   stands   by  itself  in    a   written 


*  See  in   Prof.   Stubbs'    Const.  Hist.,  i.,  p.  515,  the  speech  of  the 
archbishop  from  Matthew  Paris. 


552  POLITICAL   SCIENCE. 

shape  ;  it  was  repeatedly  confirmed  ;  and  although  procured 
by  the  aristocracy,  many  of  its  provisions  were  for  the  benefit 
of  all  the  people.  Thus  the  city  of  London  with  all  other 
cities,  boroughs,  towns  and  ports,  were  to  have  their  liberties 
and  free  customs  (Art.  12,  13)  ;  trials  were  regulated  for  the 
benefit  of  the  community  (18)  ;  fines  at  the  discretion  of  the 
court  were  limited,  so  that  even  a  villein  should  not  be  de- 
prived of  his  wainage  (comp.  Blackst.,  iv.,  379)'*  and  all 
amercements  were  to  be  assessed  by  the  oath  of  honest  men 
of  the  neighborhood  (20,  21)  ;  no  town  or  person  should  be 
distrained  to  build  bridges  unless  bound  to  do  so  by  ancient 
right  (23).  There  are  also  provisions  for  the  settling  of  in- 
testate estates  of  freemen,  for  fixed  common  measures  of 
length  capacity  and  weight  (35),  for  the  safe  ingress  and 
exit  of  merchants  (41),  for  the  general  liberty  of  leaving  and 
returning  into  the  kingdom  (42).  Two  articles  deserve  espe- 
cial notice  for  their  justice  and  wide  application.  One  is 
art.  39  :  "  No  freeman  shall  be  taken  or  imprisoned,  or  dis- 
seised, or  outlawed,  or  banished  or  anyways  destroyed;  nor 
will  we  pass  upon  him  or  commit  him  to  prison,  unless  by 
legal  judgment  or  unless  by  the  law  of  the  land  ; "  with  art. 
40,  "  we  will  sell  to  no  man,  we  will  deny  no  man,  nor  defer 
right  and  justice,"  and  art.  60:  "  all  the  aforesaid  customs 
and  liberties,  which  we  have  granted,  to  be  holden  in  our 
kingdom,  as  much  as  it  belongs  to  us,  towards  our  people, 
all  our  subjects,  as  well  clergy  as  laity  shall  observe,  as  far  as 
they  are  concerned  towards  their  dependents." 

Perhaps  the  spirit  of  humanity  and  justice  may  be  recog- 
nized in  these  provisions  which  appear  among  the  articles 
applicable  only  to  the  feudal  classes  of  barons  and  higher 
clergy  ;  but  there  must  have  been  a  feeling  also  that  the 
towns  and  smaller  freeholders  were  a  power  which  ought  to 
be  secured  on  the  side  of  the  higher  classes. 

*  That  is,  according  to  Blackstone,  his  team  and  implements  of  hus- 
bandry. Hut  wainage  seems  to  mean  the  wagon  itself  only,  as  car- 
riage means  that  which  carries,  a  vehicle.  So  the  merchant  is  hned 
(24)  saving  his  merchandise. 


MONARCHIES  553 

In  the  long  weak  reign  that  ensued  (1216-1272),  the  third 
estate  obtains  a  still  further  recognition  of  its  importance. 
In  the  sixty-first  article  of  the  charter  John  had  granted  to 
the  barons  at  Runnymede  the  power  of  choosing  five  and 
twenty  barons,  whose  office  it  should  be  to  cause  the  peace 
and  liberties  confirmed  by  this  charter  to  be  observed.  In 
case  of  failure  on  the  king's  or  his  officers'  part  to  perform 
what  he  had  covenanted  to  do,  this  committee  of  safety,  if 
we  may  so  call  it,  had  the  authority  to  seize  the  king's  castles, 
lands  and  possessions,  and  distress  him  in  any  other  ways 
they  could,  except  by  getting  his  or  his  family's  persons  into 
their  power.  When  the  grievance  was  redressed  they  should 
obey  as  before.  Here  allegiance  is  legally  suspended  and 
the  ultima  ratio  of  feudalism,  the  vassal's  resistance  to  his 
lord,  permitted. 

It  was  not  strange  that  a  weak  king,  under  the  influence  of 
foreigners  and  unscrupulous  ministers,  should  be  uneasy  at 
the  ascendancy  of  the  barons  and  allow  the  charter  to  be  vio- 
lated. The  barons  at  first  inefficient,  at  length,  in  1258,  with 
Simon  de  Montfort,  a  most  patient  man  for  their  leader, 
persuaded  the  king  to  consent  to  a  council  composed  of  their 
adherents,  and  obtained  the  provisions  of  Oxford,  according 
to  which  the  king's  principal  officers  were  controlled  by  the 
council,  and  parliaments  were  to  assemble  every  year  whether 
summoned  by  the  king  or  not.  At  these  parliaments  twelve 
honest  men  elected  by  the  commonalty  were  to  appear, 
"when  the  king  and  his  council  should  send  for  them  to 
treat  of  the  wants  of  the  king  and  his  kingdom."  This  was 
a  prelude  to  what  took  place  soon  after  the  battle  of  Lewes, 
in  1264,  when  the  king  with  his  brother  and  his  son  were 
made  prisoners  by  de  Montfort  ;  and  through  the  influence 
of  this  powerful  nobleman,  who  had  no  hearty  support  from 
the  feudal  nobility,  two  citizens  were  summoned  from  every 
borough  to  what  may  be  called  the  first  parliament  resem- 
bling those  of  modern  times.  In  the  next  reign,  sometimes 
the  deputies  from  counties  and  boroughs  were  summoned  to 
parliaments,  and  sometimes  not.     To  the  meeting  of  1295, 


554  POLITICAL  SCIENCE. 

were  summoned  the  high  clergy,  a  number  of  deputies  for 
the  chapters  and  the  clergy,  forty-nine  lay  noblemen,  two 
knights  from  each  county,  with  deputies,  two  in  number, 
from  each  borough.  Of  equal  if  not  greater  importance  in 
political  history  is  the  confirmatio  caviar um  of  the  year  1297, 
granted  during  the  war  with  Scotland  after  a  refusal  of  some 
principal  noblemen  to  join  the  army  on  account  of  illegal 
taxation.  The  king  then  says,  "  we  have  granted,  for  us  and 
our  heirs,  as  well  to  archbishops,  bishops,  abbots,  priors,  and 
other  folk  of  holy  church,  as  also  to  earls,  barons,  and  to  all 
the  commonalty  of  the  land,  that  for  no  business  hence- 
forth we  will  take  such  manner  of  aids  but  by  the  common 
consent  of  all  the  realm,  and  for  the  common  profit  thereof, 
saving  the  ancient  aids  and  prises  due  and  accustomed."  * 

Reserving  whatever  else  needs  to  be  added  respecting  the 
subsequent  powers  and  efficiency  of  parliament  of  England, 
for  another  place,  we  will  briefly  trace  the  principal  changes 
in  the  royal  authority.  During  the  reigns  of  the  three 
Edwards  and  the  two  first  kings  from  the  house  of  Lancaster, 
there  was,  on  the  whole,  a  government  by  the  nation  for  the 
good  of  the  whole,  without  continued  encroachments  of  one 
political  power  on  the  rights  of  the  others.  But  in  the  wars 
of  the  roses  the  nobility  were  in  great  measure  cut  off,  and 
the  commons — the  representatives  of  the  counties  and  the 
towns — were  too  weak,  too  much  composed  of  men  under 
court  influence,  too  inexperienced,  and  incapable  of  general 
action,  to  keep  up  their  side  of  the  balance.  With  Edward  IV. 
began  a  tendency  towards  absolutism  of  the  monarch,  an 
extension  of  his  powers  which  went  on  through  the  reigns 
of  the  Tudors  and  the  Stuarts  until  the  civil  Avars,  and  was 
again  resumed  after  the  commonwealth,  by  Charles  II.  and 
James  II.  According  to  the  ordinances  of  Edward  II.  and 
statutes  of  Edward  III.,  parliaments  were  to  be  held  every 
year,  or  oftener,  if  need  be.     But  these  regulations  became 

*  The  French  form  may  be  found  in  Pickering's  Statutes,  vol.  1. 
It  is  found  also  in  Prof.  Stubbs'  Select  Charters,  487-497  (Oxf., 
1874). 


MONARCHIES.  555 

obsolete,  and  the  practice  of  the  sovereign  to  call  them  or 
not  came  to  be  as  it  was  in  France  and  other  parts  of  the 
continent.  The  house  of  commons  increased  in  subserviency 
as  the  towns  became  many  of  them  close  corporations,  and 
as  places  in  the  house  were  filled  by  dependents  of  the  court. 
The  aim  was  to  try  to  raise  money  in  extraordinary  ways, 
such  as  '  benevolences  '  or  loans  from  private  persons,  sales 
of  monopolies  and  titles,  fines  for  special  offences  levied  by 
illegally  constituted  courts  or  such  as  had  their  jurisdiction 
illegally  extended,  and  the  levy  of  taxes  beyond  their  original 
design.  The  courts  of  justice  could  be  browbeaten  by  the 
king's  servants,  and  were  more  or  less  filled  with  servile  men. 
The  theory  of  the  king's  right,  irrespective  of  the  people,  of 
the  sacredness  and  special  divine  sanction  of  his  office,  of  the 
unlawfulness  of  active  resistance  to  his  authority,  was  held 
and  taught  by  a  large  part  of  the  ministers  in  the  established 
church,  so  that  the  church  was  less  free  and  more  servile  in 
spirit  than  it  had  been  in  the  times  of  Anselm  and  Stephen 
Langton.  It  was  a  blessing  that  James  II.  added,  to  his  aim 
to  extend  the  dispensing  power,  the  design  to  give  a  free 
position  to  a  church  hated  by  the  nation  :  otherwise  the 
contest  of  prerogative  against  public  liberty  would  have  been 
longer  and  more  severe. 

Since  1688,  the  tendency  has  been  an  unobstructed  one 
towards  placing  the  house  of  commons  at  the  head  of  affairs, 
as  the  strongest  of  the  powers  of  government.  Let  us  look 
now  at  the  actual  state  of  these  three  powers. 

The  sovereign,  reigning  according  to  hereditary  descent 
from  Princess  Sophia  of  Hanover,  as  prescribed  by  the  act 
of  settlement  of  1701,  is  the  head  of  the  church,  the  com- 
mander-in-chief of  the  army  and  navy,  has  the  power  of 
making  war,  peace,  and  all  treaties,  appoints  all  political  and 
civil  officers,  bestows  titles,  grants  pardons,  summons  and 
dissolves  parliaments,  must  give  consent  to  laws  before  they 
become  valid,  and  has  a  certain  prerogative  of  somewhat 
vague  but  limited  extent.  This  array  of  powers  seems  like 
investing  the  sovereign  with   absolute  authority,  and  to  this 


556  POLITICAL   SCIENCE. 

it  may  be  added  that  personally  he  is  above  the  reach  of  jus- 
tice. But  after  all  the  sovereign  is  great  in  dignity  rather 
than  in  power.  He  is  so  hedged  round  by  restrictions  that 
his  own  will  in  political  affairs  avails  but  little,  for  he  must 
do  everything  through  others  who  are  responsible,  and  he 
not  only  has  limitations  put  on  him  in  every  direction,  but  it 
seems  also  impossible  that  he  should  escape  out  of  them. 

Some  of  these  limitations  will  show  the  peculiar  nature  of 
the  English  constitution.  I.  He  must  have  a  responsible 
ministry  who  can  command  a  majority  in  parliament.  Here 
we  come  to  the  nature  and  workings  of  a  party  ministry, 
which  cannot  now  be  dwelt  upon.  Suffice  it  to  say  that  if 
the  houses,  especially  the  house  of  commons  has  a  majority 
in  it  against  the  existing  ministers  which  is  decided  and  per- 
manent, either  they  must  resign  or  the  parliament  be  dis- 
solved. If  the  crown  and  the  ministers  prefer  the  latter,  an 
appeal  is  made  to  the  country  in  a  new  election,  and  if  the 
election  goes  against  the  ministry,  they  must  now  leave  their 
places  at  any  rate  ;  for  should  the  crown  insist  as  it  might, 
on  retaining  them,  there  would  be  a  conflict  between  the 
powers  of  state,  the  commons  could  refuse  supplies  and  in 
the  end  impeach  the  ministers.  If,  after  all,  the  crown  should 
insist  on  its  rights  of  creating  its  ministers  and  should  con- 
tinue them  in  power,  it  would  in  fact  become  responsible, 
would  lose  its  constitutional  place  and  expose  itself  to  de- 
struction. 

2.  Again  suppose  that  a  law  has  passed  through  both 
houses,  and  the  sovereign  dislikes  it.  The  constitutional 
power  of  rejection  is  unquestionable;  but  the  fact  that  it  has 
not  been  used  since  Queen  Anne's  days  shows  that  it  does  not 
work  in  harmony  with  the  existing  mode  of  conducting  af- 
fairs. It  is  too  personal  a  power,  and  cannot  be  used  with- 
out the  sovereign's  taking  that  active  part  in  politics  which 
would  endanger  the  monarchy.  Hence,  if  the  ministry  urge 
a  measure  unwelcome  to  the  sovereign  through  the  houses, 
either  they  must  resign  and  parliament  be  dissolved,  or  a 
conflict,  as  before,  must  arise  between  reigning  opinion  and 


MONARCHIES.  557 

the  wishes  of  the  crown,  which  will  take  the  latter  out  of  the 
position  of  irresponsibility.  Thus  this  principle  that  the 
king  can  do  no  wrong,  which  the  execution  of  Charles  I.  in 
the  end  forced  on  the  country,  has  had  a  vast  influence  in 
modifying  political  practice  under  the  constitution. 

3.  Suppose  now  again  a  bold  minister  to  gratify  the  sove- 
reign's wishes  against  the  voice  of  parliament  and  the  feeling 
of  the  country,  and  to  be  impeached.  The  pardoning  power, 
if  it  were  absolute,  might  be  used  here  to  screen  a  zealous 
friend  of  the  crown.  To  prevent  this  it  was  enacted,  in  the 
act  of  settlement  of  13  Wm.  Ill,  that  "  no  pardon  under  the 
great  seal  of  England  should  be  pleadable  to  an  impeach- 
ment of  the  commons  in  parliament."  And  the  question 
whether  an  impeachment  could  survive  a  dissolution  was  de- 
cided, during  the  impeachment  of  Warren  Hastings, by  large 
majorities  of  both  houses  in  the  affirmative,  (a.d.  1791, 
May,  Const.  Hist.,  i.,  436.)  Thus,  although  after  impeach- 
ment the  crown  can  pardon,  the  end  is  attained  of  the 
country's  passing  judgment  on  a  minister  ;  and  the  crown 
can  do  no  more  for  such  a  friend  than  the  president  of  the 
United  States  can  do  for  an  unfortunate  politician  among  his 
adherents,  by  rewarding  him  after  his  constituents'  rejection 
of  him  at  the  polls,  with  an  office  in  the  custom-house  or  a 
foreign  embassy. 

4.  The  crown  is  the  fount  of  honor,  and  is  unrestricted  in 
the  exercise  of  this  power  by  any  definite  restrictions. 
Hence,  when  the  house  of  lords  made  opposition  to  the 
reform  bill  of  1832,  it  would  have  been  easy  to  bring  about  a 
majority  by  a  new  creation  of  peers,  if  the  king  had  felt 
willing  to  take  that  step.  But  this  would  have  so  lowered 
the  character  of  the  house  by  making  any  ministry  sure  of  a 
majority  there,  and  thus  in  the  ending  undermining  its  very 
existence,  that  all  parties  felt  some  other  way  of  getting  over 
the  difficulty  to  be  preferable.* 

*  Mr.  Walter  Bagehot  in  his  English  Constitution  (ed.  2,  No.  vh\, 
p.  290,  Anier.  ed.)  calls  this  power  of  making  new  peers  the  safety- 
valve  of  the  constitution.     "  It  enables  the   popular  will  to  carry 


558  POLITICAL   SCIENCE. 

Again,  there  is  no  question  that  peerages  for  life  may  be 
created  by  the  crown,  since  many  precedents,  opinions  of 
expounders  of  the  constitution,  and  the  general  theory  of 
royal  power  in  England  all  make  for  it.  But  when  the  minis- 
ters obtained  a  patent  from  the  queen  creating  an  eminent 
judge  a  peer  for  life,  the  House  of  Lords,  after  hearing  the 
report  of  a  committee,  agreed  to  their  report,  "  that  neither 
the  letters  patent  nor  the  letters  patent  with  the  usual  writ 
of  summons  issued  in  pursuance  thereof  can  entitle  the 
grantee  to  sit  and  vote  in  parliament."  *  This  decision,  so  far 
as  I  can  see,  claims  to  judge  who  can  be  members  of  the 
House  of  Lords,  and  so,  although  not  denying  that  such 
peers  may  be  created,  denies  that  they  can  be  admitted  into 
the  legislature,  which  was  the  point  aimed  at.  This  is  an 
interpretation  with  no  authority  except  that  of  the  interested 
party,  yet  wise  in  itself  because  the  respectability  of  one 
branch  of  the  government  was  involved  in  the  question. 

5.  The  power  of  declaring  war  belongs  to  the  crown,  but 
as  the  control  of  the  purse  and  the  authority  to  govern  the 
army  by  military  law  are  entirely  in  the  hands  of  parliament, 
no  war  can  be  carried  on  without  its  aid.  Much  the  same 
may  be  said  of  treaties  of  peace  and  alliance  which  in  general 
require  money  to  be  paid  out  of  the  treasury.  There  is  here 
a  singular  way  of  nullifying  the  exercise  of  the  constitutional 
powers  of  the  crown,  much  of  the  same  kind  as  if  our 
house  of  representatives  should  refuse  to  grant  money  to 
carry  out  the  terms  of  a  treaty  made  by  the  President  with 
the  consent  of  the  senate.  It  has  been  held  in  this  country 
that  the  house  is  bound  to  vote  the  money  stipulated  in  the 
treaty,  but  not  in  England,  (we  believe),  that  the  houses  of 

out  within  the  constitution,  desires  and  conceptions  which  one 
branch  of  the  constitution  dislikes  and  resists."  It  may  be  true 
that  the  dread  of  the  exercise  of  this  power  may  prevent  the  neces- 
sity of  using  it,  that  the  resistance  of  the  house  of  lords  would 
give  way  before  the  apprehension  that  they  would  be  "  watered  ",  as 
stock  is  in  this  country.  But  certain  it  is  that  a  few  experiments  of 
this  kind  on  this  dignified  house  would  make  it  a  "  corpus  vile." 
*See  May,  Const.  Hist,  i.,  237  and  onw. 


MONARCHIES.  559 

parliament  are  under  an  analogous  obligation.  Hence,  am- 
bassadors can  only  bind  Great  Britain  to  certain  treaties, 
provided  the  parliament  consents  to  the  appropriation  of  the 
sum  required.  Another  check  on  the  power  of  the  crown  in 
regard  to  foreign  relations  is  that  of  punishing  the  authors 
or  advisers  of  an  unfortunate  treaty  by  impeachment,  or  by 
requesting  the  sovereign  to  remove  them  from  his  councils, 
as  was  done  after  the  partition  treaty  in  1701. 

It  is  evident  from  these  considerations  that  the  power  of 
the  English  crown  has  since  the  revolution  in  1688  greatly 
fallen,  and  that  what  we  call  sometimes  the  "  one-man-power  " 
does  not  exist  there.  Between  the  crown  and  the  premier 
some  such  relation  exists  as  that  of  the  viziers  towards  the 
caliphs  of  Bagdad,  and  the  mayors  of  the  palace  towards  the 
Merovingian  kings  of  the  Franks.  Powers  very  extensive 
belong  by  right  to  the  exalted  person  who  wears  the  crown  ; 
but  they  are  not  used  save  in  carrying  out  the  plans  of  the  head 
of  the  ministry.  And  there  is  this  advantage  in  the  consti- 
tution, as  it  at  present  shows  itself  in  its  practical  workings, 
that  the  will  of  the  sovereign  is  guided  by  and  does  not  guide 
public  measures,  but  that  a  time  may  come — some  extremity — 
when  the  latent  authority  may  be  put  forth  to  the  saving  of 
the  state.  Thus  there  might  be  a  majority  in  parliament  of 
very  radical  views  aiming  to  overthrow  or  suppress  some 
forces  of  the  constitution;  as,  for  example,  the  house  of 
lords  :  this  could  be  done  only  by  legislation  of  the  com- 
mons, by  brow-beating  the  house  of  lords,  and  extorting  a 
consent  from  the  sovereign.  Then  would  be  the  time  for  a 
conscientious  prince  to  use  his  right  to  reject  a  law  so  wide- 
sweeping,  and  put  it  to  the  test  whether  the  country  would 
go  with  him.  If  it  would  not,  he  would  be  compelled  to 
yield  or  might  pull  down  the  throne. 

Some  of  the  modern  English  writers  seem  to  us  to  assign 
far  too  low  an  office  to  the  sovereign,  as  he  stands  in  the 
present  age.  Thus  Mr.  Walter  Bagehot,  in  various  places 
of  his  recent  work  on  the  English  constitution,  gives  us  the  im- 
pression of  thinking  that  there  must  be  in  it  something  impos- 


$6o  POLITICAL   SCIENCE. 

ing,  theatrical,  dignified,  which  appeals  to  the  senses,  which 
is  not  indeed  of  necessity  the  most  useful,  but  is  presump- 
tively likely  to  be  least  so,  which  is  "likely  to  be  adjusted 
to  the  lowest  orders,"  to  those  who  are  "  likely  to  care  least 
and  judge  worst  about  what  is  useful."  (p.  74  et  alibi.)  If 
this  theatrical  element,  which  can  be  none  other  than  the 
royal,  is  really  painted  here  in  its  true  colors,  and  if  the  hold 
of  the  monarchy  on  the  mass  of  the  people  depends  upon  it, 
is  it  not  a  pity  that  they  should  discover  the  deception,  and 
find  out  that  the  king  is  nothing  but  a  mere  figure-head  ? 
The  more  they  know  of  the  constitution  the  less  they  will 
revere  it ;  admit  them  behind  the  scenes  and  they  will  look 
at  what  goes  on  there  as  mere  action  meant  to  impose  on 
such  as  they  are. 

The  same  writer  sums  up  royal  powers  or  "  rights"  under 
a  constitutional  monarchy  such  as  that  of  England  under  "  the 
right  to  be  consulted,  the  right  to  encourage,  the  right  to 
warn."  All  these  may  exist  without  any  direct  influence  on 
the  course  of  public  measures.  A  very  able  sovereign  could 
not  help  having  influence  ;  a  very  weak  one,  however,  who 
was  also  complying,  who  had  no  strong  personal  will,  would 
be  of  all  others  best  fitted  for  the  part  the  English  king  has 
to  play  in  the  government.  If  it  could  be  believed  that  there 
was  a  living  king  when  there  was  not,  the  country  might  be 
well  managed  ;  but  the  government  could  not  go  on  without 
a  real  or  imagined  king.  Why  is  this  ?  Is  it  not  that  the 
modern  idea  of  the  crown  consists  in  the  smallest  amount  of 
personal  will  in  the  head  that  wears  it  ?  The  premier  has, 
as  the  representative  of  the  country  or  of  a  party,  a  repre- 
sentative will ;  the  sovereign,  a  formal  official  will.  The  union 
of  these  wills  secures  through  the  constitutional  methods  the 
best  government  possible  under  the  constitution;  and  that,  as 
all  will  admit,  a  stable,  quiet,  just,  intelligent  government, 
but  not  one  which  promises  stability,  if  opinion  should  change 
or  if  power  should  fall  into  the  hands  of  the  unintelligent 
classes. 


MONARCHIES.  561 

§174. 
In  looking  at  the  English  aristocracy  we  perceive  that  it 
Aristocratic    eie-  occupies  a  strong  position  in  itself  and  a  rcpre- 

ment  in  the  English  .  * 

monarchy.  sentative   power   in  the   house  of  lords.     The 

place  of  the  aristocracy  in  the  state,  aside  from  its  political 
power,  we  shall  consider  hereafter;  adding  here  only  that  this 
rank  or  class  in  society  has  been  so  treated  by  the  English 
constitution  as  to  give  it  great  efficiency  and  influence,  while 
exciting  less  of  jealousy  and  hatred  than  is  felt  towards  the 
upper  class  in  other  countries  by  the  lower  orders.  As  for 
the  house  of  lords,  the  political  representatives  of  the  higher 
aristocracy,  we  find  its  function  assigned  to  it  long  since,  even 
in  Anglo-Saxon  times.  While  among  the  Franks  no  nobility 
of  blood  is  traceable  at  first;  it  is  certain  from  Tacitus  in  his 
Germania  that  there  was  an  extensive  distinction  among  some 
Germans  between  the  ingenid  and  the  nobiles,  and  the  were- 
gild  of  the  noble  was  higher  than  that  of  the  common  man. 
Among  the  Saxons  there  were  three  or  four  orders,  accord- 
ing to  Nithard,  three  :  etJiilingi,  frilingi  and  lazzi ;  "  lingua 
vero  Latina  hoc  sunt :  nobiles,  ingenuiles,  atque  serviles," 
where  he,  without  doubt,  counted  freedmen  among  the  ser- 
viles. (Comp.  Waitz,  D.  Verfassungsgesch. ,  i.,  171  etseq., 
ii.,  289  et  seq.,  and  Stubbs,  u.  s.,  ch.  vi.,  §  64.)  In  all  these 
tribes  a  nobility  arose  afterwards,  consisting  of  those  who 
were  in  the  service  of  the  kings,  or  their  vassals,  who  received 
large  tracts  of  land  from  them,  who  had  jurisdiction  over 
counties  and  in  other  ways.  The  titles  which  became  at 
length  hereditary  were  such  as  comes,  which  was  used  in  Ro- 
man times  and  answers  to  the  count  from  whom  the  county 
(comes  comitatus,  graf  grafschaft)  governed  by  him  takes 
its  name  ;  dux,  a  military  title  in  its  origin,  duke ;  marcJiio, 
the  count  or  officer  set  over  the  marches  or  border,  marquis  ; 
vicccomes ;  baro,  baron,  originally  a  man,  free  man,  free 
landholder,  freiherr.  To  freiherr  in  German  answers  knight 
in  English,  miles,  in  Latin,  while  the  German  knecht  came  to 
denote  an  unfree  person.  The  Saxons  in  England  had  the 
36 


5^2  POLITICAL   SCIENCE. 

titles  eorl (=jarl,  in  Scandinavian),  which  seems  to  have  been 
at  first  used  of  a  noble  class,  and  afterwards  of  the  ealdorman 
or  chief  office  in  the  shire  ;  thegn,  the  military  companion, 
afterwards  the  large  landowner  whether  serving  in  war  or  not, 
and  (ZtJicling,  i.  c,  of  a  noble  family,  but  "restricted  to  the 
king's  kin.  The  more  ancient  nobility  finally  merged  into  the 
nobility  by  service,  and  the  eorl  and  sethel  were  lost  in  the 
thegn."     (Stubbs,  ch.  vi.,  §  65). 

The  witenagemote,  which  enjoyed  in  Saxon  England  very 
extensive  powers,  consisted  generally  of  the  bishops,  with 
occasionally  an  abbot,  ealdormen,  and  a  number  of  the  king's 
friends  or  dependents,  called  in  the  documents,  vwiistri,  i.  e., 
thegns,  including  the  principal  domestic  officers  of  the  king. 
They  could  never  have  been  very  numerous.  (Stubbs,  u.  s., 
§52.) 

The  great  council  under  the  Norman  kings  of  England  did 
not,  at  first,  differ  much  from  the  Saxon  zvitenagemote,  except 
that  it  was  advisory  rather  than  legislative.  The  members, 
including  the  bishops  and  abbots,  were  barons,  or  the  king's 
vassals  as  holders  of  estates  by  homage  and  fealty  ;  although 
every  tenant-in-chief  was  not  necessarily  at  first  a  member  of 
the  assembly.  The  persons  appearing  in  these  councils  are 
known  by  the  specific  names  of  archbishops,  bishops,  abbots, 
earls,  barons  (in  its  especial  sense),  and  knights.  On  a  kw 
occasions,  all  the  landowners  of  the  kingdom  were  expected 
to  be  present. 

Under  the  first  kings  of  the  house  of  Anjou,  according  to 
Prof.  Stubbs,  the  national  council  realized  the  principle  of  a 
complete  council  of  feudal  tenants  in  chief.  It  also  appears 
to  be  in  a  stage  of  transition  towards  that  combined  represen- 
tation of  the  three  estates,  and  of  the  several  provincial  com- 
munities, which  especially  marks  the  English  constitution. 
The  members  of  the  councils  now  are  the  same  as  under  the 
earlier  Norman  kings,  but  the  minor  tenants-in-chief  have  a 
more  definite  position  and  a  greater  prominence.  There  is 
"  a  growing  tendency  to  admit  not  only  them,  but  the  whole 
body  of  smaller  landowners,  (of  whom  the  minor  tenants  in 


MONARCHIES.  563 

chief  are  but  an  insignificant  portion)  to  the  same  rights.  This 
latter  tendency  may  be  described  as  directed  towards  the 
concentration  of  the  representation  of  the  counties  in  the 
national  parliament — the  combination  of  the  shiremoots  with 
the  witenagemote  of  the  kingdom."  The  royal  council  might 
consist  of  the  greater  barons,  afterwards  gathered  by  themselves 
in  the  house  of  lords,  who  paid  their  reliefs  to  the  crown,  each 
one  according  to  a  separate  agreement,  and  led  their  vassals  to 
the  host  under  their  own  banner ;  or,  of  the  entire  body  of 
tenants-in-chief,  including  also  the  lesser  barons,  knights, 
and  socage  tenants  of  the  crown,  who  paid  their  reliefs  to 
the  sheriff  of  the  county,  followed  his  banner,  and  were 
summoned  to  court  or  council  through  his  writ :  even  the 
general  body  of  freeholders  might  be  summoned.  (Stubbs, 
u.  s.,  ch.  xiii.,  §  159).  The  name  given  in  Latin  to  the 
sessions  of  the  council  was  often  colloquium,  parley,  and 
the  Italian  synonym  parlamento,  conference,  place  of  or 
meeting  for  conference,  was  used  on  the  continent  as  early  as 
1 1 54,  and  perhaps  earlier.  The  efficiency  of  the  councils  is 
greater  under  Henry  II.  than  under  the  first  Norman  kings  ; 
their  consent  as  well  as  advice  seems  to  have  been  consid- 
ered necessary  before  ordinances  or  assizes  were  considered 
binding. 

It  took  some  time  after  the  representatives  of  counties 
and  boroughs  were  summoned  to  meet  in  parliament,  before 
political  habits  were  fixed  in  regard  to  the  constitution  of  the 
assemblies,  whether  they  should  meet  in  two  bodies,  and  no 
more  or  less.  Not  long  after  the  commencement  of  the  reign 
of  Edward  III.  the  practice  of  having  two  assemblies  became 
regular;  and  the  efficiency  of  parliament  grew  greatly  under 
the  Edwards. 

Relatively,  the  house  of  lords  had  at  first  much  the  great- 
est influence,  and  nothing  could  be  done  of  which  they  were 
not  hearty  approvers.  The  commons  contained  few  men 
versed  in  affairs,  or  trained  to  politics.  We  have  already 
seen  how  the  destruction  of  most  of  the  nobility  in  the  wars 
of  the  Roses  helped  the  crown  to  usurp  new  rights,  and  that 


564  POLITICAL   SCIENCE. 

a  direction  towards  absolutism  began,  which  only  ended  at 
the  revolution  of  1688.  In  the  war  of  Charles  I.  and  the 
parliament,  the  majority  of  the  peers  sided  with  the  crown, 
and  gave  their  counsel  to  the  King  at  Oxford.  Under 
Charles  II.  the  lines  drawn  between  parties  became  more 
distinct  than  before,  and  the  whig  peers  of  the  next  centuries 
had  the  government  of  the  country  in  their  hands.  This  was 
owing  to  the  support  they  gave  to  the  house  of  Hanover. 
But  the  dread  of  French  revolutionary  principles  turned  the 
scale  in  favor  of  the  Tories,  and  the  magnates  of  that  party 
controlled  public  measures  until  some  time  after  the  downfall 
of  Napoleon.  Noblemen  of  both  parties,  by  their  influence 
and  ownership  of  land  in  a  county  or  in  or  near  a  town, 
returned  a  great  number  of  members  to  the  house  of  com- 
mons. But  this  source  of  power  has  been  nearly  cut  off 
since  1832,  and  the  amount  of  wealth  in  the  hands  of  com- 
moners is  now  so  great,  that  relatively,  since  the  increase 
of  manufacturers  in  Great  Britain,  the  nobility  have  been 
falling  behind.  On  more  than  one  great  occasion  within  the 
century,  especially  in  the  struggle  over  the  reform  of  the 
franchise  (1832)  and  the  amendments  of  the  corn  laws  or 
the  abolition  of  the  protection  of  English  breadstuffs,  which 
was  in  itself  a  measure  for  the  benefit  of  the  manufacturing 
interests,  they  have  offered  a  decided  resistance  to  any 
change,  but  finally  have  been  obliged  to  give  way.  So  that 
now  they  must  be  called  an  apparatus  to  retard  and  perfect, 
rather  than  to  forward  legislation.  If  the  lords  for  any  rea- 
son should  hold  out  against  the  strong  will  of  the  commons, 
renewed  perhaps  after  a  new  election  caused  by  their  persis- 
tence, they  would  endanger  the  constitution  of  the  country, 
and  their  own  existence  in  the  future. 

The  house  of  lords  has,  in  theory,  nearly  the  same  powers 
with  the  commons,  besides  those  of  sitting  as  a  court  of  im- 
peachment, trying  their  own  members  for  political  crimes, 
and  until  very  lately,  of  last  resort  for  hearing  cases  of 
appeal  from  the  higher  courts  of  the  realm.  They  have  lost 
their  place  of  predominance  in  the  constitution,  and  cannot 


MONARCHIES.  565 

prevent  any  important  movement  favored  by  a  decided  public 
opinion,  unless  a  strong  sentiment  of  the  intelligent  classes 
lends  them  its  aid. 

§  175. 

We  have   already   seen  how   the    aristocracy   of  England 
The  house  of  com-  created,  so  to  speak,  the  representation  of  the 
mons-  towns   and   shires   in   the  reign    of  Henry  III. 

For  a  long  time  the  house  of  commons,  as  it  is  at  present 
conceived  of,  had  no  definite  existence,  and  little  self-subsis- 
tence. The  "  estates  "  of  the  realm  might  have  taken  the 
form  so  general  on  the  continent,  of  clergy,  nobility  and 
"third  estate,"  which  might  have  embraced  the  towns  only, 
as  the  knights,  who  were  tenants-in-chief,  might  have  been 
called  to  sit  regularly  with  the  larger  landowners.  The  house 
of  the  clergy  might  have  been  made  to  consist  of  the  great 
dignitaries,  together  with  deputies  from  the  rest  of  the  order. 
Thus,  the  representatives  of  the  towns,  standing  alone,  would 
have  been  weak  and  perhaps  unable  ever  to  become  indepen- 
dent of  their  successors  in  rank.  The  causes  which  gave 
strength  to  the  house  of  commons  were:  1,  that  the  higher 
clergy  appeared  as  magnates  in  the  house  of  lords,  and  not 
as  heads  of  a  political  body  united  with  their  lower  brethren. 
2,  that  the  knights,  representing  the  shires  by  the  force  of 
causes  not  easy  to  be  traced,  came  to  meet  together  with  the 
men  sent  by  the  towns  ;  and  3,  that  the  habit  grew  up  of  sum- 
moning parliaments  to  meet  frequently,  if  not  every  year. 

In  some  of  the  parliaments  of  Edward  I.,  as  in  1295,  there 
were  deputies  from  the  inferior  clergy  ;  *  and   the   houses  of 

*  Comp.  Stubbs,  ii.,  129,  for  the  parliament  of  1295,  where  seven 
earls  and  forty-one  barons  had  each  a  special  summons.  Two  knights 
for  each  shire,  two  citizens  for  each  city,  two  burgesses  for  each  bo- 
rough, are  to  be  elected  under  the  sheriff's  superintendence.  The 
archbishops  and  bishops  are  to  bring  the  heads  of  their  chapters,  their 
archdeacons,  one  proctor  for  the  clergy  of  a  cathedral,  and  two  for 
those  of  a  diocese.  The  estates  voted  separately  on  aids  to  the  king. 
The  borough  members  and  the  knights  gave  different  portions  of  their 
property. 


566  POLITICAL   SCIENCE. 

convocation  for  the  two  archbishoprics  of  England  seem  to 
have  been  then  in  the  habit  of  meeting.  They  were  called 
upon  for  aids,  and  could  pass  canons  which  were  valid  with 
the  royal  assent.  If,  now,  there  could  have  been  a  house  of 
clergy,  having  political  rights,  the  constitution,  at  some  favor- 
able time,  might  have  been  essentially  altered.  It  is  proba- 
ble, also,  as  Mr.  Hallam  remarks  (supplementary  notes  to 
his  Middle  Ages,  no.  167),  that  the  great  barons  "looked 
with  jealousy  on  the  equality  of  suffrage  claimed  by  the  infe- 
rior tenants  in  capite,  before  the  principle  of  legislation  had 
been  established."  Thus  these  smaller  landholders  can  have 
gravitated,  so  to  speak,  towards  an  association  with  the  bur- 
gesses rather  than  with  the  great  lords.  When  representation 
was  established  they  were  summoned  by  the  sheriff  of  the 
county,  and  not  like  the  magnates  by  special  writs  addressed 
to  each.  That  mode  of  convoking  them  might  produce  a 
class-feeling  between  them  and  the  representatives  of  the 
towns.  Both  were  elected  by  members  of  their  respective 
bodies. 

2.  The  weakness  of  the  burgesses  at  first  is  apparent.  They 
needed  association  with  some  stronger  body  and  could  have 
had  none  with  the  higher  nobility.  The  union  of  the  knights 
of  the  shires  or  smaller  landowners  with  them,  when  it  be- 
came settled,  created  a  strong  body,  representing  a  large 
amount  of  land  and  of  movable  property;  some  of  the  mem- 
bers of  which  had  a  knowledge  of  the  world  and  of  pub- 
lic affairs.  The  representatives  of  the  towns  seem  to  have 
felt  themselves  to  be  out  of  their  element.  Attendance  in 
parliament  is  rather  a  burden  than  an  honor.  They  do  not 
see  at  first  what  they  are  to  gain  by  consenting  to  grant  aids 
to  the  king. 

3.  That  which,  more  than  all  things  else,  kept  similar  bodies 
on  the  continent  from  acquiring  power  and  influencing  the 
political  habits  of  their  countries,  was  the  infrcquency  of 
their  being  called  together.  It  depended  on  the  sovereigns 
when  they  should  meet;  and  as  those  preferred  increasing 
their  revenues  by  some  other  means  than  that  of  asking  the 


MONARCHIES.  567 

estates  for  assistance;  whenever  financial  difficulties  did  not 
press  upon  them  they  did  not  care  to  summon  their  estates 
to  meet  together.  The  French  estates-general,  which  met 
together  for  the  whole  kingdom  in  1484,  and  in  which  the 
three  estates  were  not  kept  apart,  petitioned  the  king  (Charles 
VIII.),  that  they  should  be  reassembled  after  two  years. 
But  as  the  kings  contrived  to  raise  money  and  issue  ordi- 
nances without  their  help,  a  hundred  and  seventy-two  years 
elapsed  between  the  dissolution  of  the  estates  in  161 5  and 
the  convocation  of  them  at  the  commencement  of  the  French 
revolution.  The  jealousies  of  the  estates,  and  the  coalition 
of  the  two  first  orders  against  the  third,  favored  this  disuse 
of  the  semi-representative  government  in  that  country.  But 
if  the  kings  had  been  obliged  to  call  on  them  every  two  years 
for  subsidies,  no  such  disuse  and  consequent  absolutism  could 
have  taken  place.  So  it  was  in  other  parts  of  the  continent.* 
In  England,  as  early  as  the  fourth  year  of  Edward  III.,  and 
again,  in  the  twenty-sixth  and  fiftieth  of  the  same  king,  stat- 
utes were  passed,  to  the  effect  of  calling  a  parliament  every 
year  (a  new  parliament  the  first  statutes  declare),  which 
does  not  imply,  it  would  seem,  anything  more  than  a  new 
convocation  of  the  same  members  without  new  election. 
But  "  oftener  if  need  be,"  is  added,  and  "  need  be  "  may  be 
made  to  refer  not  to  oftener  but  "  to  every  year,"  which  leaves 
the  matter  to  the  king's  judgment.  But  in  the  first  year  of 
Richard  II.,  the  terms  of  the  statute  seem  express  and  abso- 
lute. The  commons  petition  that  meetings  of  parliament 
may  be  held  once  a  year,  at  least,  and  that  in  a  convenient 
place.  The  king  granted  the  petition  as  it  respected  the  an- 
nual meetings  but  kept  the  place  within  his  own  power,  and 
the  year  after  "  he  declared  that  he  had  summoned  the  par- 
liament, because  it  was  ordained  that  parliament  should  be 
held  every  year. "  The  subsequent  kings  by  no  means  adhered 
to  this  rule.  There  were  under  the  Tudors  and  Stuarts  long 
intermissions,  under   Henry  VIII.  one  of  four  years,  others 

*  See  Thierry's  "  Tiers  iStat  ;  "  chapters  iv.  and  vii. 


568  POLITICAL   SCIENCE. 

of  the  same  length  under  Edward  VI.  and  Elizabeth,  of  six 
years  in  the  reign  of  James  I.,  of  twelve  in  the  reign  of  the 
first  Charles.  The  long  parliament  of  Charles  I.  passed  the 
statute  that  not  more  than  three  years  should  intervene  be- 
tween the  meeting  of  a  new  parliament,  after  the  dissolution 
of  another,  with  the  very  stringent  provision  that  if  the  king 
should  neglect  to  send  out  writs  to  the  sheriffs  for  a  new  elec- 
tion, they  should  summon  the  voters  themselves,  and  in  case 
of  their  neglect  that  the  voters  should  meet  without  summons 
to  make  their  elections.  An  act  of  16  Car.  II.,  or  1664,  re- 
peated in  6  W.  and  M.,  provides  that  the  longest  interval  in 
such  a  case  shall  be  three  years.  Since  1688  the  practice  of 
legislation  requires  an  annual  assembly,  as  the  mutiny  act 
and  the  supplies  are  voted  annually,  so  that  without  a  new 
parliament  every  year  the  government  could  not  be  carried 
on,  nor  the  army  or  navy  be  subjected  to  military  discipline.* 
The  hinge  on  which  everything  has  turned  in  regard  to  the 
control  of  the  commons  in  legislation,  has  been  that  the  power 
of  granting  supplies  by  taxing  the  community — other  than 
the  peers  and  the  clergy — fell  naturally  into  their  hands.  If 
the  executive  power  in  a  country  finds  it  the  easiest  way  of 
obtaining  supplies  from  the  different  bodies  of  which  the  na- 
tion is  made  up  to  ask  for  them,  we  may  be  sure  that  there 
is  some  fear  of  resistance  to  exactions,  or  some  feeling  that 
the  payers  of  taxes  have  a  right  to  give  or  withhold  their 
consent ;  and  when  things  have  come  to  this  pass  the  giving 
of  taxes  will  be  coupled  with  corresponding  grants  of  favors 
on  the  other  side.  If  these  grants  have  respect  to  the  re- 
moval of  abuses,  or  the  substitution  of  regulated  for  arbitrary 
power,  the  country  where  they  occur  is  on  the  way  to  a  gov- 
ernment according  to  established  usages,  which  can  become 
a  constitutional  government,  when  once  the  taxpayers  have 
an  acknowledged  political  power,  f 

*  See  for  parts  of  this  paragraph  Christian's  notes  on  Blackstone, 
B.  1,  chl  2,  p.  153. 

f  In  theory  the  lords  taxed  themselves  and  the  commons  taxed 
themselves  ;  but  in  modern  taxation,  customs,  excise,  the  income  tax, 


MONARCHIES.  569 

Before  the  time  of  the  Edwards,  during  which  the  house 
of  commons  became  something  of  a  power  in  the  state,  the 
preparation  was  made  for  the  future  orderly  administration 
of  the  finances.  In  the  Magna  Carta  no  scutage  or  aid 
could  be  imposed  unless  by  the  common  council  of  the  king- 
dom, except  on  three  special  occasions  ;  and  it  is  added  that 
all  the  cities  and  towns  shall  have  the  common  council  of  the 
kingdom  concerning  the  assessment  of  their  aids.*  (Art.  xiv. , 
xvi.)  Prof.  Stubbs  remarks  of  the  period  under  Henry  II., 
and  his  sons,  "  that  the  whole  subject  of  taxation  illustrates 
the  gradual  way  in  which  king  and  people  were  realizing  the 
idea  of  self-government.  The  application  of  a  representative 
scheme  to  the  work  of  assessment  [by  a  jury  of  sworn  knights 
and  others  in  the  neighborhood  appointed  to  estimate  the 
value  of  personal  property  now  subjected  to  taxation],  and 
the  recognition  that  the  liability  of  the  payer  was  based  on 
his  own  express  consent,  either  to  the  grant  itself  or  to  the 
amount  of  his  own  contribution,  mark  a  state  of  things  in 
which  the  concentration  of  local  interests  in  one  general  coun- 
cil was  all  that  was  needed  to  secure  the  taxpayer  from  arbi- 
trary treatment  on  the  part  of  either  the  sovereign  or  his 
ministers."  (§  161.)  The  learned  historian  goes  on  to  show 
how  the  advances  in  the  judicial  system  concurred  with  the 
causes  above  mentioned.  Particularly,  "the  use  of  election 
and  representation  in  the  courts  of  law  furnished  a  precedent 
for  the  representation  of  the  county  by  two  sworn  knights  in 
the  national  council."     (§  164.) 

Legislation  in  the  commons  grew  out  of  petitions  which, 
if  refused,  might  be  attended  with  refusal  of  supplies.  It 
was   long   before  the   commons  could  be   said  to  legislate. 

etc.,  are  strictly  national,  falling  on  the  individual  consumer  or 
property  holder,  whoever  he  be.  This  is  really  a  constitutional 
change. 

*  Mr.  Hallam,  in  his  supplemental  notes  to  his  "  Middle  Ages," 
notices  the  omission  from  the  renewal  of  John's  charter,  in  the  first 
year  of  Henry  III.,  of  the  clause  making  consent  to  the  imposition 
of  aids  and  scutages  necessary,  and  requiring  the  summons  of  all  ten- 
ants in  capite  before  either  could  be  levied. 


570  POLITICAL   SCIENCE. 

It  had  been  the  king's  custom  not  to  reply  to  the  commons' 
petitions  until  the  last  day  of  the  session.  Probably  during 
the  reign  of  Richard  II.  they  attempted  to  reverse  the  order 
of  things  and  to  delay  granting  subsidies,  until  they  had  re- 
ceived from  the  king  an  answer  to  their  requests.  In  1401 
(under  Henry  IV.),  they  asserted  that  it  was  not  their  custom 
to  grant  at  once,  and  he  insisted  on  the  contrary.  In  i4°7» 
they  appeared  before  him,  presented  their  grievances,  and 
received  his  answer ;  their  subsidies  were  not  granted  until 
several  weeks  afterwards.  Again,  in  1410,  the  subsidies 
were  not  granted  until  two  members  of  the  privy  council  had 
been  dismissed,  and  satisfaction  obtained  on  other  points. 
In  1455,  under  Henry  VI.,  the  commons  demanded  a  Pro- 
tector of  the  Kingdom  on  account  of  the  king's  imbecility. 
The  archbishop  of  Canterbury  pressed  the  lords  to  give  an 
answer,  because  the  commons  would  not  give  attention  to 
affairs  in  parliament  until  they  had  obtained  an  answer  and 
satisfaction  of  their  request."  * 

The  beginnings  of  a  house  of  commons,  as  we  trace  them, 
are  not  very  hopeful.  As  the  parliaments  were  convoked 
in  order  to  fill  the  king's  treasury,  every  class  voted  by  them- 
selves. In  1295,  the  members  of  the  old  king's  council,  with 
the  knights  of  the  shires,  gave  the  eleventh  part  of  their  per- 
sonal property,  the  clergy  a  tenth,  the  towns  a  seventh. 
Under  Edward  III.,  in  1333,  the  knights  of  the  shire  gave  a 
fifteenth,  the  representatives  of  the  towns  a  tenth,  and  yet 
the  records  show  that  they  voted  in  common.  The  men  from 
the  boroughs  on  the  ancient  royal  domains  constituted  a 
separate  class  from  the  rest,  and  voted  distinct  supplies. 
There  was  also  no  fixed  rule  in  regard  to  the  towns  that  were 
summoned  to  send  members  to  parliament.  A  town  or 
borough  might  be  omitted  from  one  summons,  and  included 
iu  the  next  one.  Nor  was  the  number  of  deputies  placed 
beyond  the  reach  of  the  king's  will,  although  generally  each 
county  and   town   returned   two  members.     And   it  would 

*  Guizot,  Hist,  of  Represent.  Gov.     Sect.  xxv. 


MONARCHIES.  57 1 

seem  that  the  sheriff,  on  behalf  of  the  crown,  had  no  scruple 
in  influencing  the  choice  of  members. 

In  1347.  M.  Guizot  considers  the  fusion  of  elements  in  the 
commons  to  have  been  completely  effected.  Mr.  Hallam 
places  it  somewhat  earlier.  Let  us  now  briefly  see  what  part; 
besides  a  participation  in  making  the  laws,  they  took  in  the 
general  affairs  of  the  country,  what  rights  they  acquired, 
and  how  they  reached  their  present  controlling  and  supreme 
position. 

Even  before  the  commons  could  be  said  to  be  a  strong 
body  secure  in  its  position,  it  was  employed  in  political  affairs 
of  the  most  vital  importance.  But  it  was  used  by  others  to 
carry  out  their  purposes, — by  a  discontented  faction  of  barons, 
by  a  pretendant  to  the  crown,  by  the  kings  themselves.  And 
the  very  important  laws,  not  of  a  political  nature  directly, 
which  they  had  an  agency  in  passing,  such  as  the  statutes  of 
prsemonire  and  against  provisors,  originated,  without  doubt, 
outside  of  those  inexperienced  assemblies.  The  first  great 
political  action  in  which  they  were  concerned  was  the  deposi- 
tion of  Edward  II.,  in  1327.  The  parliament  met  at  the  call 
of  his  son,  and  were  asked  whom  they  preferred  to  have  for 
their  king  ?  They  replied  with  one  voice  that  the  son  should 
be  made  king.  On  his  refusal  to  do  so  without  his  father's 
consent,  commissioners  were  appointed  to  receive  the  king's 
resignation  to  the  crown.  On  this,  he  renounced  the  royal 
dignity.*  Here,  evidently,  all  classes  were  united  against 
the  favorites,  who  had  brought  misfortune  on  the  country; 
but  the  commons  would  never  have  ventured  on  this  step 
unless  they  had  followed  the  higher  classes.  Again,  the 
commons  joined  in  the  impeachmeut  of  Richard  II.,  and  pro- 
nounced his  deposition.  This  was  an  expression,  without 
doubt,  of  popular  feeling;  but  the  parliament  had  been  a  (exv 
years  before  entirely   subservient   to    the    now   fallen   king. 

*  According  to  Sir  Thomas  More,  in  Cobbett's  Pari.  Hist,  i.,  79, 
the  committee,  sent  to  the  king  by  the  parliament,  told  him  that  if  he 
would  not  resign,  "  the  people  would  yield  up  (renounce)  their  hom- 
age and  fealty,  and  choose  a  king  out  of  the  royal  line." 


572  POLITICAL   SCIENCE. 

And  so,  the  acceptance  of  the  several  victorious  claimants  of 
the  crown  during  the  civil  wars,  and  the  numerous  attainders 
of  leaders  of  the  vanquished  party;  the  declaration,  in  1461, 
that  Edward  IV.  was  undoubted  king  of  England,  and  that 
the  reign  of  Henry  VI.  was  an  intrusion  and  usurpation, (as 
contrasted  with  the  vote  in  1470,  when  the  Earl  of  Warwick 
had  put  Henry  again  on  the  throne,  that  Edward  was  a  trai- 
tor and  usurper);  the  declaration  after  Richard  III.  had 
usurped  the  crown  that  the  children  of  Edward  by  Lady  Gray 
were  illegitimate  on  account  of  a  previous  contract  of  mar- 
riage ;  the  attainder  of  the  earl  of  Richmond,  and  acceptance 
of  him  soon  after  as  Henry  VII, — these,  with  all  the  acts 
concerning  religion,  the  settlement  of  the  crown,  the  sanc- 
tion of  the  divorce  of  Henry  VIII.  from  Catharine,  as  well 
as  the  restoration  of  the  old  religion  under  Mary,  are  either 
unwilling  acts  of  timid  men  to  a  great  extent,  or  acts  of  a 
predominant  party  and  not  of  the  nation.  In  them  all  the 
commons  were  a  tool  of  the  prevailing  power,  or  an  append- 
age to  the  house  of  lords.  Still  the  fact  that  an  acknowledged 
part  of  the  government  *  was  called  upon  to  join  in  sanction- 
ing revolutions,  shows  that  it  had  gained  a  high  position,  if 
not  the  highest,  and  suggests  the  possibility  of  a  further 
advance  in  influence. 

But  other  more  independent  acts  of  the  houses  of  commons 
in  these  times,  disclose  to  us  a  feeling  on  their  part  that  they 
are  watchmen  over  the  interests  of  the  country  ;  and  although 
sometimes  they  express  themselves  in  humble  strains,  the  real 
sense  of  what  they  say  is  bold  enough.  About  1376  the 
commons  of  the  "good  parliament"  petition  for  the  removal 
of  Alice  Perrers,  the  old  king's  mistress,  from  his  person  ;  and 
they  represent  to  the  king  and  lords  that  it  would  be  for  his 
honor  and  profit  "  that  his  council  [should  be]  augmented  with 

*  The  chancellor  of  Edward  IV.  declared,  in  a  speech  addressed 
to  lords  and  commons,  "  that  the  three  estates  comprehended 
the  government  of  the  land  ;  the  preeminence  whereof  was  due  to 
the  king  as  chief,  the  second  [place]  to  the  bishops  and  lords,  and 
the  third  [place]  to  the  commons." 


MONARCHIES.  573 

some  lords,  prelates,  and  others,  to  the  number  of  ten  or 
twelve,  who  should  be  continually  near  the  king,  so  as  no 
great  business  might  pass  without  the  advice  and  assent  of 
six,  or  four  of  them  at  least,  as  the  case  required."  Here 
we  see  an  attempt  at  a  direct  control  over  the  king's  ministers 
instead  of  that  more  efficient  but  more  indirect  one  which  has 
been  developed  in  modern  times."* 

Another  characteristic  of  the  early  commons  was  a  jealousy 
of  churchmen  and  a  desire  to  restrict  their  power  in  the  state 
as  landholders  and  as  advisors  of  the  sovereigns.  In  1372 
(under  Edward  III.),  they  petition  against  employing  church- 
men in  the  government,  and  that  laymen  of  sufficient  ability 
might  for  the  future  be  made  chancellor,  treasurer,  clerk  of 
the  privy-seal,  etc.  This  arose  from  fear  of  the  undue  influ- 
ence of  men  who  had  a  foreign  spiritual  sovereign.  But  the 
commons  had  been  educated  by  the  legislation  under  Edward 
I.,  the  greatest  and  wisest  of  the  English  kings,  to  see  the 
danger  of  a  power  like  that  of  the  pope  to  the  independence 
of  England  ;  and  the  reign  of  John  may  have  given  them  sal- 
utary warnings  and  humiliations.  The  statutes  of  mortmain 
passed  in  the  reign  of  Edward  I.,  before  the  commons  had  much 
to  do  with  general  legislation,  the  statutes  of  provisors  passed 
under  Edward  III.,  and  Richard  II.,  the  statute  of  praemu- 
nire of  16  Richard,  and  subsequent  legislation  of  a  similar 
kind,  indicate  a  spirit  of  sound  political  self-preservation  in 
which  all  laymen,  lords  and  commoners,  together  with  many 
ecclesiastics,  joined. 


*The  proceedings  against  de  la  Pole,  earl  of  Suffolk,  in  the  10th 
year  of  Richard  II.,  led  to  high  claims  of  parliament,  higher,  perhaps, 
than  were  made  before  or  since.  The  parliament  told  the  king  that 
if  the  king  should  alienate  himself  from  his  people,  and  refuse  to 
govern  by  the  laws  and  statutes  of  the  realm  .  .  .  and  stubbornly  ex- 
ercise his  own  singular  and  arbitrary  will,  then  from  that  time  it  shall 
be  lawful  for  his  people,  by  their  full  and  free  assent  and  consent, 
to  depose  the  king  from  his  throne,  and  in  his  stead  to  establish 
some  other  of  the  royal  race  upon  the  same.  The  old  Anglo-Saxon 
spirit  was  come  back  again.  The  whole  doings  of  this  year  (10  Rich., 
1386),  are  altogether  deserving  of  study.     (Pari.  Hist.,  i.,  182-215.) 


574  POLITICAL  SCIENCE. 

The  new  parliament,  like  the  old  council  of  the  kings,  not 
only  gave  consent  to  the  passage  of  laws,  and  had  high  advi- 
sory powers,  even  reaching  to  interference  in  matters  of  ad- 
ministration, but  they  acted,  also,  as  an  extraordinary  court, 
by  impeachment  and  attainder.  The  first  of  these  was  very 
necessary,  so  long  as  the  king  carried  on  his  government 
through  ministers  of  his  own,  who  were  not  otherwise  remov- 
able, and  so  long  as  a  powerful  subject,  acting  in  the  interests 
of  absolute  power,  felt  himself  equal  to  changing  the  course 
of  the  constitution.  Here  the  commons  might  fail  to  bring 
about  a  sentence  of  the  lords  against  the  obnoxious  man,  but 
the  risk  of  such  a  sentence,  the  voice  of  a  branch  of  the  legis- 
lature and  of  at  least  a  minority  in  the  other  branch,  the  feel- 
ing through  a  lifetime  of  being  hated  by  a  part  of  the  country, 
were  themselves  penalties.  Unhappily,  impeachment  was 
sometimes  the  measure  of  a  mere  cabal.  Attainder,  an  ex- 
ercise of  judgment  without  conviction,  more  terrible  than  ostra- 
cism or  than  any  other  process  of  Attic  or  Roman  law,  even 
if  it  had  not  long  been  attended  with  forfeiture  of  estates  and 
corruption  of  blood,  would  have  been  a  most  barbarous 
method  of  reaching  criminals  whose  power  could  screen  them 
from  ordinary  prosecutions,  and  who  had  done  nothing  tech- 
nically illegal.  It  was,  however,  condemnation  on  the  ground 
of  notorious  bad  character  and  bad  counsels,  and,  except  in 
times  of  great  civil  dissension,  did  not  ordinarily  strike  at  the 
wrong  person. 

The  privileges  of  parliament  have  grown  up  and  been  ac- 
knowledged by  slow  degrees.  In  1377  the  first  known 
speaker  is  mentioned,*  and  of  all  the  members  he  should  be 
the  most  protected  in  the  discharge  of  his  duties.  But  in 
1453,  Thomas  Thorp,  then  holding  this  office,  was  imprisoned 
together  with  another  member,  on  account  of  damages  yet 
unpaid,  recovered  from  him  in  an  action  of  trespass,  by  the 
Duke  of  York.     The  house  complained,  and  the  case  being 

*  Or  rather,  the  first  presiding  officer  called  speaker,  for  the  fore- 
man or  prolocutor  of  the  "good  parliament  "  was  really  a  speaker  as 
-ere  others  before  him.     Stubbs,  ii.,  430,  note,  and  392,  note. 


MONARCHIES.  575 

referred  to  the  judges,  they  said  that  a  general  supersedeas  *  of 
the  parliament  there  was  not,  but  a  special  there  was  ;  in 
which  case  of  special  supersedeas  every  member  of  the  house 
of  commons  ought  to  enjoy  the  same,  unless  it  be  in  cases  of 
treason,  felony,  surety  of  the  peace,  or  for  a  condemnation 
before  the  parliament."  After  this  answer  the  house  of  lords 
resolved  that  "Thorp  should  remain  in  execution  [/.  e.,  in 
prison],  notwithstanding  his  privilege."  Thereupon  they 
sent  a  committee  of  their  own  house  on  the  king's  behalf  to 
choose  a  new  speaker.  A  strange  transaction,  unless  it  is  to 
be  explained  by  the  fact  that  the  Duke  of  York  belonged  to 
that  body.  In  process  of  time  privilege  extended  beyond 
their  own  personal  exemption  from  arrest  and  their  freedom 
of  speech,  to  the  freedom  of  their  servants,  lands,  and  goods. 
This,  however,  did  not  extend  long  beyond  a  dissolution, 
but,  according  to  W.  Prynne  (cited  by  Chitty  on  Blackst. ,  i., 
166),  only  "  for  the  number  of  days  the  members  received 
wages  after  dissolution,  which  were  in  proportion  to  the  dis- 
tance between  his  home  and  the  place  where  the  parliament 
was  held."  A  statute  of  10  George  III.  took  away  the 
privileges  of  domestics,  land  and  goods.  Freedom  from 
arrest  f  begins  as  many  days  before  the  opening  of  parlia- 
ments as  are  needed  to  come  from  any  part  of  the  kingdom, 
and  expires  at  an  equal  time  after  dissolution ;  it  continues 
also  forty  days  after  a  prorogation.  It  does  not  include  arrest 
for  treason,  felony,  or  breach  of  the  peace.  Freedom  of 
speech  is  entire,  as  far  as  exemption  from  being  called  to  ac- 
count outside  of  the  house  is  concerned  ;  but  disrespectful 
language  in  debate,  referring  to  the  sovereign  or  to  a  mem- 
ber of  either  house,  can  be  repressed  by  the  speaker  and  an 
apology  can  be  required.  Words  or  writings  of  members 
uttered  outside  of  the  house  can  be  treated  as  libellous,  like 
those  of  persons  who  are  not  members.     In  1581  one  Hall  was 

*Comp.  for  this  term  Blackst.  Com.,  i.,  166. 

f  Comp.  Hallam,  Const.  Hist.,  i.,  365,  and  for  the  general  subject, 
Hi.,  351,  382,  also  May's  Const.  Hist,  in  various  places  of  vol.  i.,  as 
in  the  passages  relating  to  Wilkes,  Stockdale,  etc. 


576  POLITICAL  SCIENCE. 

imprisoned,  fined,  and  expelled  for  a  printed  libel ;  and  it  has 
since  been  the  usage  and  held  to  be  the  right  of  parliament 
to  imprison  any  of  the  members  for  misconduct  in  the  house 
or  relating  to  it.  In  a  few  instances,  the  offending  member 
was  declared  by  vote  incapable  of  sitting  in  the  parliament 
then  assembled,  as  in  that  of  John  Wilkes,  in  1769,  after  his 
expulsion  and  subsequent  re-election.  But  this,  although 
there  are  precedents  for  it,  decides  without  law  in  a  particular 
case  whom  the  electors  shall  not  choose.  (Hallam,  iii.,  357, 
May,  i.,  374.)  As  for  persons  who  are  not  members,  there  is 
full  precedent  and  reason  for  calling  them  to  account  by  act 
of  the  house,  and  committing  them  to  prison  ;  although,  as 
Mr.  Hallam  remarks,  this  power  has  lain  open  to  more  doubt 
than  that  over  its  own  members.  On  the  whole,  as  the  de- 
cided control  of  the  house  of  commons  has  become  more 
acknowledged  and  more  unassailable,  their  stickling  for  privi- 
lege, beyond  what  is  necessary  for  attention  to  duties  and 
punctuality,  has  lessened;  until  now  it  scarcely  goes  beyond 
those  conceded  to  the  congress  of  the  United  States  by  the 
federal  constitution. 

We  have  already  said  that  there  was  no  entire  uniformity 
in  the  summoning  of  boroughs  to  send  their  representatives 
to  the  house  of  commons.  And  it  would  seem  that  both 
the  boroughs  were  indifferent  to  the  privilege  and  the  bur- 
gesses often  reluctant  to  attend  the  meetings  of  parliament. 
Possibly  the  smaller  boroughs  may  have  been  glad  to  escape 
from  the  necessity  of  paying  wages  to  their  representatives, 
and  there  could  be  found  but  few  able  to  quit  their  business. 
It  was  also  at  one  time  required,  we  believe,  that  the  repre- 
sentative should  live  among  his  constituents.  When  after- 
wards the  deputies  served  at  their  own  charges,  it  might  be 
impossible  to  find  a  person  from  within  the  borough  ready  to 
take  this  burden  upon  him.  The  two  requisitions,  therefore, 
of  residence  within  the  town  and  of  being  paid  by  it  for  ser- 
vice in  parliament  stood  or  fell  together.  When  the  practice 
of  paying  wages  ceased,  another  order  of  men,  residing  per- 
haps in  the   neighborhood,    or   connected  with  families  of 


o 


MONARCHIES.  577 

noblemen  or  of  gentlemen  in  the  near  vicinity,  offered  them- 
selves as  candidates  and  were  accepted.  Thus  an  interest 
was  formed  which  made  it  worth  while  for  titled  or  wealthy 
families  to  own  property  in  and  around  the  boroughs  so  as  to 
be  sure  of  an  entrance  into  parliament  for  a  son  or  protege. 
In  this  way  some  of  the  great  statesmen  of  England  made 
their  debut  into  public  life.  The  ease  of  controlling  places 
which  returned  members,  was  increased  by  two  circumstan- 
ces :  first,  many  of  the  boroughs  and  cities  had  a  very  small 
number  of  electors,  or  perhaps  the  magistrates  themselves 
alone  had  that  power,  and  in  the  course  of  time  many  bo- 
roughs were,  if  wc  mistake  not,  restricted  in  their  right  of 
suffrage  very  considerably.  But,  secondly,  in  the  course  of 
five  or  six  centuries,  great  changes  in  the  distribution  of  the 
people  occurred  ;  places  of  ancient  importance  dwindled  to 
small  villages,  and  centres  of  industry  arose  where  there  had 
been  no  inhabitants  before.  Besides  this,  a  most  undesirable 
change  went  on  in  the  gradual  extinction  of  small  properties 
and  their  absorption  into  great  estates.  These  great  proprie- 
tors owned,  in  fact,  the  small  boroughs,  could  return  whom 
they  pleased,  and  even  made  it  a  family  principle  to  secure 
them,  as  rights  of  presentation  were  secured,  to  their  pos- 
terity. Thus  great  and  crying  inequalities  of  representation 
arose, — rotten  boroughs,  controlled  by  the  aristocracy  send- 
ing two  members,  near  great  towns,  sending  none,where  vast 
wealth  was  accumulated,  and  which  gave  England  its  distinc- 
tive character  for  manufacturing  industry.  Had  the  control 
of  these  boroughs  been  in  the  hands  of  one  party  alone,  the 
Tories  for  instance,  it  would  not  have  been  endured,  but  the 
field  was  open  to  the  great  families  of  both  parties  alike. 
This  vicious  system  of  representation  reached  its  climax  in 
the  last  century  and  the  beginning  of  this  ;  but  as  it  brought 
able  men  of  high  character  into  the  house  of  commons,  as 
the  true  doctrine  was  admitted  that  the  members  returned 
were  guardians  and  watchmen  of  the  general  interests  of  the 
country,  and  as  the  parties  had  alike  resort  to  this  method  of 
securing  influence  and  so  balanced  one  another;  the  evils 
37 


578  POLITICAL   SCIENCE. 

were  not  so  gre-at  as  they  would  naturally  be  ;  the  country 
was  governed  by  the  aristocracy — the  aristocracy  both  of 
title,  and  of  wealth  ;  and  although  there  was  little  of  an 
enlightened  spirit  of  reform  or  of  sympathy  with  the  lower 
classes,  it  was  in  the  main  governed  well.  But  a  change  of 
sentiments  swept  over  the  world  in  which  a  new  recognition 
of  human  rights  and  a  new  spirit  of  humanity  were  mingled; 
while  at  the  same  time  the  intelligent  middle  class  gained 
relatively  to  the  upper  in  whatever  justifies  the  claims  of  men 
to  political  power.  The  reform  bill  of  1832  enlarged  the 
suffrage  and  distributed  it  on  a  juster  scale,  taking  it  away 
from  many  decayed  places  and  imparting  it  to  many  new 
centres  of  industry.  The  new  suffrage  bill  of  1867,  proposed 
and  carried  by  a  conservative  ministry,  made  other  changes 
in  the  same  direction.  It  is  not  unlikely  that,  for  good  or 
for  evil,  the  enlargement  of  the  suffrage  has  not  stopped. 
With  this  great  overthrow  of  abuses  other  reforms  and  ad- 
vances mark  the  legislation  of  England  and  justify  the  re- 
forms in  the  suffrage.  Such  are  the  improvements  in  crimi- 
nal law,  the  new  divorce  courts,  the  smaller  or  county  courts 
with  cheap  justice  spread  over  the  country,  the  new  police 
system,  the  new  education,  the  new  court  systems,  with  many 
others,  which  show  that  the  present  parliamentary  system 
represents  the  light,  humanity  and  hopefulness  of  a  commu- 
nity increasing  in  wisdom  and  civic  virtue. 

This  sketch  of  the  progress  of  the  house  of  commons 
from  its  beginnings,  when  it  was  the  weakest,  to  the  present 
time  when  it  is  the  strongest  branch  of  the  government,  is  a 
fine  illustration  of  the  growth  of  institutions.  A  constitu- 
tion written  at  first,  would  have  petrified  everything,  and 
prevented  all  this  progress.  It  may,  however,  now  be  asked 
whether  the  balance  of  the  powers  in  the  mixed  monarchy 
of  England  can  stay  as  it  is,  and  whether,  with  an  increased 
extent  of  suffrage  downwards,  there  will  be  any  restraint  on 
rapid  violent  change, offered  by  the  constitution  in  its  present 
form  or  by  other  political  forces, opposing  radical  tendencies 
in  a  house  of  commons.     What  is  called  the  omnipotence  of 


MONARCHIES.  579 

parliament  could  now,  without  appeal  to  the  people,  over- 
throw the  constitution  by  a  vote,  if  both  houses  and  the  sove- 
reign were  agreed  in  this  ;  and  if  a  strong  vote,  which  was 
thought  to  represent  the  predominant  will,  should  be  cast 
for  the  destruction  of  the  house  of  lords  and  of  the  kingly- 
office,  those  powers  could  offer  no  resistance,  except  by  dis- 
solving the  house  of  commons.  If  another  house  with  the 
same  spirit  should  be  returned,  what  would  there  be  to  pre- 
vent their  will  from  being  carried  out  in  act,  unless  it  were  an 
appeal  to  arms  in  which  the  weaker  branches  of  government 
would  be  sure  of  defeat  ?  Nothing  then,  under  the  present 
constitution,  would  prevent  a  complete  change  in  political 
order,  nor  even  delay  it.  A  written  constitution  requiring, 
for  instance,  a  convention  and  a  vote  of  two-thirds  might 
secure  delay,  but  would  it  prevent  revolution  ?  A  negative 
answer  must  be  given  to  this  question,  unless  the  powers  of 
the  sovereign,  inherent  but  now  used  only  in  an  official  way, 
could  be  directed  towards  stemming  the  torrent.  It  is  cer- 
tain that  the  house  of  lords,  as  such,  could  offer  no  effectual 
resistance  to  a  democratic  overturning.  And  if  after  such  a 
change,  the  house  of  commons  should  remain  in  possession 
of  the  government,  it  seems  altogether  probable  that  the 
ensuing  misgovernment  would  cry  aloud  for  a  check,  and  at 
least  for  the  check  of  a  written  constitution  on  the  wills  of  a 
democratic  assembly,  beyond  its  power  to  alter  or  interpret. 


§  176. 

Instruments  of  government  in  a  written  form  defining  the 
Written  constitu-   powers    of  the    departments,    as    distinguished 

tions,   and  constitu-  .  f  .     ,  ...        .     . 

tionai  monarchy.  from  laws  or  charters  of  special  political  impor- 
tance, have  been  known  for  a  long  time.  Such  was,  for 
instance,  the  Utrecht  Union  of  1579,  which  constituted  the 
United  States  of  the  Netherlands,  each  of  which  had  its 
chartered  privileges  before.  But  it  is  only  in  the  present 
and  in  the  last  part  of  the  eighteenth  century,  that  constitu- 
tions in  a  written  form,  whether  given  out  by  the  head  of 


580  POLITICAL   SCIENCE. 

the  state  in  the  shape  of  a  charter  of  conceded  but  irrevoca- 
ble rights,  or  framed  by  public  conventions,  have  come  into 
vogue,  through  the  desire  of  the  nations  to  have  some  written 
statement  of  their  liberties  and  of  a  settled  order  of  govern- 
ment on  which  they  could  rely.  It  is  quite  possible  for  an 
absolute  government  to  state  its  powers  in  a  written  form, 
but  the  modern  written  constitutions  are  mostly  intended 
to  be  limitations  of  absolute  power  ;  and  as  in  Europe  they 
chiefly  contain  the  principles  of  a  limited  monarchy  copied 
in  part  from  the  English  pattern,  (although  neither  so  strin- 
gent in  their  restriction  of  power  nor  so  open  in  their  gift  of 
liberty),  we  may  arrange  the  governments  for  which  they 
provide  together  under  the  head  of  modern  or  constitutional 
monarchy.  While  they  all  have  arisen  into  being  through 
the  admiration  of  the  institutions  of  England  which  Montes- 
quieu set  in  motion  in  the  eighteenth  century,  they  are 
unfortunate  in  being  made  to  order  instead  of  resting  on  ages 
of  political  experience  ;  they  carry  with  them  few  associa- 
tions with  the  past  and  inspire  no  reverence  ;  and  if  we  are 
not  deceived,  the  greater  part  of  them  contain  no  sufficient 
provision  for  impartial  interpretations  of  their  meaning  against 
the  decisions  and  arbitrary  acts  of  the  government.  They 
do  not  admit,  or  admit  reluctantly  and  but  partially,  that 
each  nation  has  a  right  to  determine  what  its  own  govern- 
ment shall  be.  They  generally  agree  as  to  the  inviolability  and 
irresponsibility  of  the  king,  as  to  providing  for  a  responsible 
ministry,  and  as  to  one  or  more  than  one  legislative  chamber. 
They  differ  in  respect  to  the  composition  of  the  chambers,' 
the  extent  of  suffrage,  the  amount  of  self-government  lodged 
in  the  hands  of  the  municipalities  and  other  districts,  and  in 
other  important  particulars  which  are  noticed  in  another 
place. 

The  inviolability  of  the  sovereign,  and  the  responsibility  of 
some  one  else  for  every  political  act  must  obviously  be  coor- 
dinate; but  it  is  hard  to  make  them  so  in  practice,  because 
powers  are  given  to  the  sovereign  which  can  be  used  to 
screen  a  minister  who  has  simply  carried  out  his  will.      The 


MONARCHIES.  581 

responsibility  of  the  minister  is  limited  in  a  few  constitutions, 
as  in  the  charter  of  Louis  XVIII.,  which  provides  that  they 
cannot  be  accused  except  for  treason  or  peculation.  This 
provision  (article  $6)  is  changed  in  the  charter  of  1830,  into 
liability  to  be  impeached  in  general,  without  specification  of 
any  particular  crime — and  with  reason  ;  for  many  a  man  would 
commit  neither  treason  nor  peculation,  who  would  endeavor 
with  all  his  might  to  overthrow  the  constitution  from  which  he 
derived  his  authority.  Political  offences  of  the  gravest  kind 
may  be  of  an  intangible  nature,  such  as  connivance  with  a 
king  in  stretching  his  prerogative,  or  neglect  to  maintain  the 
constitution,  or  endeavors  within  the  law  to  influence  elec- 
tions. The  power  ought  then  to  be  lodged  in  a  body  which 
judges  of  political  misdemeanors,  of  deciding  whether  a  min- 
ister has  been  false  to  his  duties,  whether  he  has  duly  re- 
spected the  constitution.  If  he  has  committed  treasonable 
acts,  or  embezzled  public  funds,  let  him  be  punished  like 
other  traitors  or  peculators  ;  but  if  he  is  chargeable  with 
political  misdeeds  which  are  not  punishable  by  ordinary 
criminal  law;  let  him  be  tried  for  them,  and,  if  guilty,  be 
incapacitated  for  all  state  employment  in  the  future.  And 
for  such  offences  it  would  seem  that  ordinary  courts  of  justice 
are  not  the  most  fit  tribunals.  Since  their  habits  of  judging 
require  them  to  look  after  definite  acts,  a  better  court  would 
be  one  of  the  legislative  chambers  where  two  exist,  or  one 
constituted  for  the  case  like  courts  martial. 

Where  there  is  more  than  a  nominal  responsibility  of  a 
minister,  practice  must  conform  itself  to  that  under  the 
English  constitution  since  ministers  on  party  principles 
began  to  exist.  The  minister  must  suit  the  majority  in  the 
popular  constitution;  or, what  is  the  same  thing,  the  chambers 
by  a  new  election  be  made  to  coincide  with  the  ministers; 
and  thus  the  king's  will  be  reduced  to  such  a  minimum  as  is 
compatible  with  efficient  government.  This  point,  the  con- 
stitutional governments  have  not  reached  ;  and  until  they 
reach  it,  the  executive  will  be  continually  tempted  to  take 
sides  against  the   people,   to   have    a   party  of  his  own,   to 


532  POLITICAL   SCIENCE. 

choose  men  for  his  ministers  who  will  disregard  the  spirit  of 
the  constitution  as  far  as  they  dare.  When  this  point  is 
attained,  ministers  will  not  need  to  be  impeached  ;  for  collis- 
ions between  the  executive  and  the  law,  or  the  legislature, 
will  hardly  occur. 

It  is  almost  taken  for  granted  by  some  writers  on  political 
forms  that  a  sovereign  monarch  must  be  incapable  of  being 
called  to  account  for  private  or  public  crimes.  As  for  his 
private  relations  it  is  conceded  that  there  ought  to  be  some 
court  where  he  may  find  or  give  justice.  In  England,  de- 
mands on  the  king  may  be  brought  on  petition  before  the 
court  of  chancery  (Blackst,  i.,  243),  although  "no  suit  or 
action  can  be  brought  against  [him],  even  in  civil  matters, 
because  no  court  can  have  jurisdiction  over  him.  For  all 
jurisdiction  implies  superiority  of  power.  Authority  to  try 
would  be  vain  and  idle  without  an  authority  to  redress;  and 
a  sentence  of  a  court  would  be  contemptible,  unless  that 
court  had  power  to  command  the  execution  of  it  ;  but  who, 
says  Finch,  shall  command  the  king  ?  "  (ibid.,  242).  In  the 
Austrian  code  it  is  said  that  "  those  legal  proceedings  which 
concern  the  supreme  head  of  the  state,  but  relate  to  his  pri- 
vate property  or  to  modes  of  acquiring  property  which  de- 
pend on  municipal  law,  are  to  come  before  the  judges  and  be 
decided  according  to  the  laws."  (Comp.  Dahlmann,  Politik. ,  i. , 
^  130.)  This  is  clearly  just.  If  the  king  or  chief  executive 
is  the  fountain  of  justice  or  is  in  any  way  its  support,  why 
should  he  have  an  exemption  from  just  law,  except  so  far  as 
to  give  him  personal  freedom  for  the  sake  of  attending  to  his 
important  duties  ?  The  reasoning  of  Blackstone  falls  to  the 
ground  when  once  the  true  theory  is  received  that  a  sove- 
reign individual  is  such  only  as  being  the  representative  in 
chief  of  a  sovereign  state.  Why  should  the  highest  repre- 
sentative of  a  just  state  be  exempt  from  the  control  of  just 
law  ? 

As  for  the  exemption  of  a  king  or  other  sovereign  from 
the  control  of  criminal  laws,  implied  in  the  notion  of  a 
modern  constitutional  monarch,  the  propriety  of  carrying  it 


MONARCHIES.  583 

through  so  as  to  cover  all  crimes  may  be  reasonably  doubted. 
The  doctrine  of  many  advocates  of  monarchy  would  seem  to 
amount  to  this,  that  the  very  notion  of  royal  power  and  of 
sovereignty  is  inconsistent  with  that  of  being  responsible. 
Thus  Dahlmann  says  that  "  to  rule  and  to  be  responsible, 
when  conceived  of  as  co-existent,  are  contradictions  " 
(u.  s.,  104)  ;  and  Stahl  thus  expresses  himself:  "  The  king  is 
sovereign  ;  that  is  the  notion  ;  and  a  king  who  is  not  sove- 
reign is  an  absurdity."  (Staatslehre,  §  72.)  He  at  the  same 
time  admits  that  a  king  may  be  limited  by  a  constitution. 
What  notion  is  contained  in  the  word  king,  is  a  comparatively 
unimportant  inquiry.  We  have  attempted  to  show  in  an- 
other place  that  the  real  sovereignty  is  that  of  the  state  and 
not  of  the  chief  officer  of  the  state.  There  is  no  middle 
ground  between  this  and  absolutism.  And  this  opinion  is 
not  theoretical  only  ;  it  has  been  acted  upon,  as  in  the  An- 
glo-Saxon kingdoms,  where  the  witans  deposed  their  sove- 
reigns, and  in  some  of  the  feudal  principalities  of  the  middle 
ages,  where  the  states  exercised  as  well  as  claimed  the  right 
of  deposition.  The  estates  of  Brabant,  of  Luneburg,  of 
Bavaria,  of  Schleswig-Holstein,  the  so-called  "  ewige  union  " 
of  the  Saxe-Lauenburg  estates  of  151 5  recognized  this  right, 
as  belonging  to  them  in  relation  to  their  rulers.  In  15 14, 
the  estates  of  Bavaria  remind  the  lord  of  the  land  of  the 
punishment  (/.  c,  deposition)  which  their  old  charters  threaten, 
and  declare  their  intention  to  side  with  the  more  compliant 
of  two  brothers.  The  estates  of  Schleswig-Holstcin  chose 
their  ruler  as  late  as  1588,  and  in  the  formula  of  election  de- 
clared that,  if  their  privileges  were  not  observed  so  that  they 
could  feel  assurance  in  respect  to  them,  "honorable  estates 
(landschaft)  would  be  free  from  their  oath  and  duty,  and  the 
election  that  had  been  made  would  be  of  no  force."  (Dahl- 
mann, u.  s.,  g  140,  n.  1.)  So  the  English  theory,  accepted  at 
the  revolution  of  1688,  was  that  there  was  a  contract  between 
the  king  and  the  English  people,  the  infraction  of  which  by 
the  king  might  cause  the  throne  to  be  vacant.  In  mild  lan- 
guage a  right  of  resistance  in  extreme  cases  was  declared  to 


584  POLITICAL   SCIENCE. 

exist,  against  the  sovereign.*  Now  this  right  thus  acknowh 
edged  is  not  made  a  dead  letter  by  a  complete  representative 
system  nor  by  ministerial  government ;  for  it  it  very  credible 
that  the  head  of  the  state,  although  acting  through  a  consti- 
tutional ministry  in  ordinary  affairs,  may  yet  engage  alone  or 
with  some  one  who  is  not  a  minister  in  nefarious  political 
transactions.  Here  there  is  no  minister  to  stand  between  the 
sovereign  and  wrong-doing,  and  so  no  one  is  responsible  if 
he  himself  is  not. 

Furthermore  this  responsibility  of  the  constitutional  king- 
in  three  cases — where  he  aids  and  abets  political  crimes  of  a 
ministry,  where  he  engages  in  such  crimes  without  their  pri- 
vity, and  perhaps  also  where  he  commits  gross  private  crimes 
— is  a  security  against  revolutions,  and  irregular  justice.  If 
a  ruler  is  so  absolutely  inviolable,  or  so  outside  of  law  that 
no  power  within  the  state  can  reach  him,  he  will  be  tempted 
by  this  very  impunity  to  misuse  the  trust  put  into  his  hand  ; 
and  on  the  other  hand  private  vengeance,  or  general  abhor- 
rence felt  for  him,  will  take  the  course  of  assassination  or  in- 
surrection. The  knowledge  of  what  befell  two  comparatively 
good  kings,  Charles  I.  and  Louis  XVI.,  from  revolutionary 
courts,  has  kept  back,  without  doubt,  and  will  keep,  worse 
sovereigns  from  crime.  And  the  possibility  of  deliverance 
in  a  peaceful  way  from  a  bad  ruler  would,  if  he  were  amenable 
to  justice,  prevent  outbreak  and  sustain  the  royal  form  of 
supreme  authority. 

In  regard  to  private  crimes,  such  as  subject  other  men  to 
the  retribution  of  the  law,  the  question  of  a  sovereign's  ex- 
tent of  responsibility  becomes  somewhat  more  difficult.  But 
when  we  weigh  the  bad  influence  of  a  prince  who  seduces 
the  wives   of  other   men,  or  takes  off  his  enemies  by  hired 

*  As  a  curiosity  what  Plutarch  says  of  Cyme  (Quaest.  Grrec.,  2) 
may  be  mentioned,  that  "  there  was  a  public  officer  there  named  a 
phylactes,  whose  usual  business  was  to  keep  the  jail,  but  who  came 
into  the  council  during  their  nocturnal  meeting,  led  forth  the  kings  by 
the  hand,  and  held  them  in  custody  until  the  council  by  a  secret  bal- 
lot decided  whether  they  were  acting  wrongfully  or  no." 


MONARCHIES.  585 

assassins,  upon  court  and  country,  to  give  him  impunity  ap- 
pears so  corrupting,  so  destructive  to  loyalty  and  therefore 
to  the  stability  of  the  government;  that  it  seems  as  if  some 
high  court  of  justice,  to  be  called  in  certain  emergencies, 
might  well  be  united  with  constitutional  government.  When 
the  queen  of  George  IV.  was  tried,  did  not  the  English  na- 
tion feel  a  sympathy  with  an  unworthy  woman  for  the  rea- 
son that  the  instigator  of  the  trial  was  himself  guiltier  ? 

On  the  whole,  then,  the  principle  of  a  king's  unlimited  irre- 
sponsibility ought  itself  to  be  limited,  in  order  that  the  quiet 
and  morality  of  the  country,  and  the  safety  and  freedom  from 
temptation  of  the  sovereign,  may  be  in  a  degree  secured. 

There  can  be  no  sure  or  permanent  liberty  under  constitu- 
tional monarchies,  if  the  armies  are  under  the  complete  con 
trol  of  the  executive;  so  that  a  refusal  of  an  assembly  or  a 
parliament  to  vote  supplies  to  a  military  establishment  may 
not  modify  the  arrangements  of  the  administration.  Just 
here  lie  the  great  obstacles  in  the  way  of  regulated  liberty. 
Mutual  jealousy  demands  such  vast  forces  that  the  countries 
of  continental  Europe  stagger  under  the  burden  of  taxes  and 
debt,  and  live  in  constant  dread  of  war.  The  armies  become 
one  of  the  chief  interests  ;  the  spirit  of  the  armies  is  a  spirit 
of  unreasoning  obedience  except  at  the  height  of  revolu- 
tionary fevers  ;  their  attachment  to  and  pride  in  great  cap- 
tains, who  themselves  know  no  law  but  that  of  personal 
devotion  to  the  throne,  will  make  it  easy  at  some  crisis  to 
overthrow  a  constitution.  Thus  these  new  limited  monar- 
chies stand  between  two  uncertainties, — that  of  going  back 
towards  absolutism  by  the  help  of  coups  d'etat  provoked  by 
violently  progressive  parties,  and  that  of  violent  movement 
in  the  attainment  of  the  highest  ends  of  the  state.  Add  to 
this  that  police  and  bureaucratic  systems,  repressive  of  per- 
sonal freedom,  and  implying  the  remains  of  tyrannical  dread 
on  the  part  of  the  administration,  keep  down  in  modern  con- 
stitutional monarchies  the  feeling  of  personal  independence, 
without  which  no  institutions  can  take  deep  root  in  the 
hearts  of  a  people. 

END   OF   VOL  I. 


An 


v 


V 


3UV 


]\\V 


'j  ijjh*  jui 


S^EUNIVER% 


"JOdAinil  JVAV 


^lOS-ANGElfr^ 


"mwiivj-jvyr         ''TOITVJJQV 


<fil«S0^ 


^OFCAIIF0% 


^OFCAilfO/?^ 


"%^AINn-3WVN 


y<?AavaaiH^ 


^UIBRAR:  ^UBRARY^  ^EUMIVER% 

UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


& 


^slOSANCElfj> 


S£P  1  2  1988 


lAINIHtt* 
SANGER 

as 


AINIUtW 


-< 


iiv>:io-v 


AllFO^ 


WCElfj: 


'A. 


> — »  r1 
^1 


^3 


INH3VW 

lNGElft> 


^EUNIVERty^ 


N>:lOSANCElfj> 


L=£f  irrti  lUfTl  lur; 


^UIBRARYQr         ^UIBRARY^ 


ms/A 


tfKA>. 


3  1158  01077  5053 


||lS|flK«lREG'0NAL  LIBRARY  FACILITY 


MM     0 

01295  958    i 

=     .<  V 


TOa. 


aME-UNIVERJ//. 


«% 

V     ^1 

